DENVER — The United States Court of Appeals for the 10th Circuit on Tuesday affirmed a district court’s motion to dismiss Free Speech Coalition v. Anderson, the industry trade association’s challenge to Utah’s age verification law.
In a statement, FSC noted that the court’s decision to reject its appeal was not a ruling on whether the state’s age verification mandate is constitutional. Rather, two of the court’s three justices rejected FSC’s attempt to bring suit against Utah’s attorney general and commissioner of public safety as public officials who, FSC argued, are closely tied to implementation and enforcement of the law. The two-to-one majority ruled that those officials are not responsible for enforcement of the law, and therefore cannot be sued by FSC.
As XBIZ reported, FSC filed its appeal last year, after a Utah judge granted the state’s motion to dismiss the organization’s challenge to SB 287, Utah’s age verification law, which went into effect in January 2023. At the time, FSC noted that the law “requires sites to verify identity through a non-existent state digital ID, or to partner with data brokers to otherwise verify age and identity of all visitors,” citing serious privacy concerns about the legislation, and contended that it is unconstitutional.
FSC opted to combat the law via a pre-enforcement challenge because while SB 287 creates civil liability for adult content platforms, it does not empower state officials to proactively file suit against sites alleged to have violated the law, and instead it outsources such actions to private citizens in Utah. Therefore, the law’s constitutionality cannot be directly challenged in court until private citizens take legal action against sites.
Industry Reactions
When FSC announced its decision to appeal, in August 2023, FSC Executive Director Alison Boden called this tactic “an end-run around the First Amendment.”
In Tuesday’s FSC statement, Boden said, “These laws were designed to be difficult to challenge and designed to have a chilling effect on our First Amendment rights. We will continue the fight to hold the state accountable for the laws it has passed.”
The chilling effect Boden warned about became evident months before the 2023 district court ruling against FSC, when Pornhub decided to block its site in Utah.
Since then, SB 287 has served as a model for similar legislation in other states, as lawmakers seek ways to shut down adult content online while skirting constitutional challenges. If the 10th Circuit’s decision becomes precedent, that could severely hamper the ability of FSC and other free speech groups to oppose such laws.
Industry attorney Lawrence Walters, of Walters Law Group, told XBIZ that the 10th Circuit decision is “disappointing but not unexpected.”
“The Eleventh Amendment generally provides immunity to the states from being sued without their permission,” Walters explained. “This type of ‘sovereign immunity’ is subject to an important exception carved out by the U.S. Supreme Court in Ex parte Young, which allows plaintiffs to sue state officials who are responsible for enforcing unconstitutional laws.
“However, lawmakers in Utah cynically sought to frustrate judicial review of the constitutionality of its age verification law by allowing enforcement only by private parties and not state officials such as the attorney general,” Walters added. “In this way, the state politicians hoped to create a threat of enforcement while avoiding the consequences of enacting an unconstitutional law.
“Fortunately, the U.S. Supreme Court is considering a challenge to the Texas age verification law,” Walters noted. “This will likely determine whether any of these recent spate of state AV laws are consistent with the First, Fifth and Fourteenth Amendments.”