Tenth Circuit Kills Free Speech Coalition Appeal in Utah AV Case

DENVER—The U.S. Tenth Circuit Court of Appeals has ended an appeal by the Free Speech Coalition to challenge Utah's age verification bounty law, Senate Bill (SB) 287. In a split decision, 2-1, the three judges on the Tenth Circuit panel affirmed a ruling by a federal district judge that initially dismissed the lawsuit on grounds the coalition had no standing to bring suit due to how SB 287 is legally structured. "These laws were designed to be difficult to challenge and designed to have a chilling effect on our First Amendment rights," said Alison Boden, executive director of the Free Speech Coalition, in a press statement. "We will continue the fight to hold the state accountable for the laws it has passed.” The court's split majority ruled that Utah Attorney General Sean Reyes and Public Safety Commissioner Jess L. Anderson can't be directly sued to enjoin SB 287 from being enforced. Utah's SB 287 is structured uniquely in a way to rely on civil enforcement actions brought by private individuals against adult entertainment companies for not having age-gating measures in place. This law was drafted in a manner that makes it exceptionally challenging for SB 287 to be challenged and rendered unconstitutional.  AVN has reported previously on SB 287 being structured in a manner known as a "bounty law." The federal district judge in this case initially chose to dismiss the Free Speech Coalition’s suit seeking a preliminary injunction blocking the Senate Bill 287 age verification law by citing a U.S. Supreme Court ruling dealing with a controversial law that was implemented in 2021 by religious conservatives and anti-abortion elected lawmakers in the state of Texas: Senate Bill 8. Controlled by a Republican supermajority like in Utah, the Texas state legislature adopted Senate Bill 8 in 2021, which outlaws abortions after six weeks. This is about when a fetus shows cardiac activity, therefore giving the law the short title of the Texas Heartbeat Act. Senate Bill 8 prohibits Texas officials from enforcing the ban but authorizes private individuals and entities to enforce the law by suing someone who performs, aids, or abets an abortion procedure after the six-week limit built into the statute. Critics of Senate Bill 8 have characterized the Texas Heartbeat Act as the “abortion bounty law” that grants private citizens—such as anti-abortion activists—an inward-looking extrajudicial deputization to abuse the statute for political and personal gain. By extension, the law allows state officials and judges to evade some degree of pre-enforcement judicial review. A lawsuit challenging the Texas Heartbeat Act was filed with the U.S. Supreme Court on request for an emergency appeal by abortion rights activists and reproductive health care providers.  That case, Whole Woman's Health v. Jackson, rendered a decision by the conservative-leaning high court that abortion providers couldn’t sue state judges, court clerks, or the attorney general to stop the filing of private civil-enforcement lawsuits as permitted in the language of Senate Bill 8. This is a very troubling decision, but it didn’t come without merit or reference to previous case law. The high court’s decision in Whole Woman’s Health was cited at length by a federal district judge as justification for dismissing the lawsuit challenging the mandatory age verification law’s constitutionality. This was affirmed by the Tenth Circuit. However, the lone dissenting judge on the appeals panel made the argument that the bounty age verification law in Utah violates the First Amendment rights of adult users and the operators of adult websites like Pornhub.com. Aylo, the parent company of Pornhub, geo-blocked Utah in 2023. Age verification legislation in Texas is being challenged before the U.S. Supreme Court in the case of Free Speech Coalition et al v. Paxton.