FSC Petitions Tenth Circuit to Rehear Utah AV Case

DENVER/LOS ANGELES—Attorneys representing adult entertainment industry trade group the Free Speech Coalition filed a petition for a rehearing en banc with the U.S. Tenth Circuit Court of Appeals in Denver, Colo., in a bid to revive an appeal in a lawsuit challenging the state of Utah's controversial age verification bounty law. "Once this court has issued its order or judgment deciding the outcome of the appeal, the decision is generally final," reads the Tenth Circuit's website. "A party unhappy with a final decision of this court may file a petition for rehearing with the panel, giving reasons why the panel’s decision should be reconsidered." Bloomberg Law reports that counsel argues the Tenth Circuit's ruling conflicts with existing U.S. Supreme Court precedent. The en banc petition also singles out Utah's public safety chief's apparent links to enforcing the age verification law throughout the state. This asked the entire Tenth Circuit to reconsider a portion of the opinion the panel initially issued, which includes a partial dissent concerning enforcement of the age verification law through the state's public safety agency. AVN reported on October 1 when the Tenth Circuit ruled in a split decision, 2-1, to affirm a ruling by a Utah federal district judge who dismissed a lawsuit challenging Senate Bill (SB) 287 on technical grounds. In the district judge's ruling, it was determined that the FSC had no standing to sue state officials for the enforcement of SB 287. That is because SB 287 is regarded as a so-called "bounty law," which allows for private enforcement actions implemented by the state judiciary to enforce the law. The age verification law in Utah is structured in a way that prohibits state officials from enforcing it, relying on private citizens to act as law enforcers, or "bounty hunters."  A term like "bounty hunters" is used to describe the case law cited by the Utah federal district judge. The judge cited 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.