Florence v. Shurtleff

Civil No. 2: 05CV000485 (D. Utah May 15, 2012)


In May 2012, the U.S. District Court for the District of Utah issued an order ruling that people cannot be prosecuted for posting content constitutionally protected for adults on generally accessible websites, and they are not required by law to label such content that they do post.

The order was issued in a lawsuit challenging a 2005 Utah law that sought to restrict minors’ access to sexual material on the Internet by creating a list of websites the Attorney General’s office deems to be inclusive of “harmful to minors” material.

Previous case name: The King’s English v. Shurtleff


Utah passes law to restrict harmful to minors content on the Internet

On March 21, 2005, Utah Governor Jon Huntsman signed into law H.B. 260 [15]. The law expands existing Utah statute on the distribution to minors of harmful to minors material and pornographic material to include Internet content and Internet service providers. The law also requires the Attorney General to create a public registry of websites that the Attorney General’s office deems to include harmful to minors material, without any judicial review. Internet service providers are then required to either block access to websites included in the registry or to provide filtering software to users, and Utah-connected content providers must self-evaluate and label the content of their speech.

Media Coalition files lawsuit

A broad-based group of Utah bookstores, artistic and informative websites, Internet service providers and national trade associations filed a lawsuit [14] in the U.S. District Court for the District of Utah on June 9, 2005, arguing that the Utah law is unconstitutional because it violates free speech and interstate commerce violations. The complaint also explains that due to the nature of blocking technology, Internet service providers would sometimes be required to restrict access to websites that are not included in the Attorney General’s list and do not include harmful to minors material. The case was filed as The King’s English v. Shurtleff.

The plaintiffs are: The King’s English, Sam Weller’s Zion Bookstore (now Weller Book Works), American Booksellers Foundation for Free Expression, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, Publishers Marketing Association (now Independent Book Publishers Association), American Civil Liberties Union of UtahNathan Florence (a Salt Lake City-based artist), W. Andrew McCullough (candidate for Utah Attorney General), Computer Solutions International, Mountain Wireless Utah, The Sexual Health Network, Utah Progressive Network Education Fund and American Civil Liberties Union of Utah.

In November 2005, the State of Utah agreed, in a stipulated order [13] signed by U.S. District Court Judge Dee Benson, not to enforce the Utah law and the harmful to minors provision with respect to Internet transmissions other than to a specific known individual known to be a minor.

Utah amends the law, but issues remain

In February 2007, an amendment, H.B. 5 [11], to the law was passed by the legislature and signed by the governor. The amendment resolved some of the constitutional issues listed in Media Coalition’s complaint but failed to deal with other issues and raised new concerns.

Media Coalition filed an amended complaint [10] on April 30, 2007, reflecting the changes enacted in H.B. 5. On May 31, 2007, the State of Utah filed a motion to dismiss for lack of standing [9].

Judge Benson issued a ruling [8] on November 29, 2007, allowing the case to proceed but dismissed two of the local bookstores, The King’s English and Sam Weller’s Zion Bookstore, from the case for lack of standing. The two bookstores remained a part of the case as members of the American Booksellers Foundation for Free Expression. The case is now captioned as Nathan Florence v. Shurtleff, after Florence, a Utah painter who paints, among other scenes, nudes.

In 2008, attorneys for the plaintiffs filed a motion for reconsideration [7] of the court’s prior ruling denying standing for some of the plaintiffs. The state filed a response [6], together with a motion to vacate the preliminary injunction. Judge Benson denied [5] the plaintiffs’ motion to reconsider. The court did not take action on the defendants’ motion to vacate the preliminary injunction, leaving it in place.

Conclusion of the case

After a period of discussions between the plaintiffs and the state defendants, Media Coalition filed a motion for summary judgment [4] on June 8, 2011. In their response [3], the state defendants moved to dismiss and cross-moved for summary judgment. Media Coalition filed a reply and response [2] on September 9, 2011.

Judge Benson heard the argument for summary judgment and the state’s motions on April 11, 2012. Following the argument, Media Coalition and the Utah Attorney General agreed to a stipulated order [1], which was signed by Judge Benson on May 18, 2012. The order limited the scope of the Utah law, so that it does not apply to the posting of harmful to minors content on generally accessible websites.

Last updated: Nov 6, 2015