Florence v. Shurtleff: Judge Issues Order Protecting Internet Speech in Utah

Most recent news: On May 18, U.S. District Judge Dee Benson signed an order ruling that people cannot be prosecuted for posting content constitutionally protected for adults on generally-accessible websites, and are not required by law to label such content that they do post. Judge Benson’s order was issued in a lawsuit challenging a Utah law that threatened the free speech rights of online content providers and Internet users.

Plaintiff’s counsel worked out an agreement with Utah Attorney General Mark Shurtleff on how the law would be implemented. Yesterday’s order makes clear that the only people who can be prosecuted under the statute for electronic communications are those who intentionally send “harmful to minors” material to a minor having negligently failed to determine the age of the recipient. The order also narrowed the mandatory labeling provision in light of advances in Internet filtering software since the statute was enacted in 2005.

“This is a critical victory for free speech,” said Media Coalition Executive Director David Horowitz. “The declaratory judgment makes clear that adult-to-adult communications on the Internet, and through other electronic means, cannot be restricted simply because minors also access the Internet and other electronic communications.” Michael Bamberger of SNR Denton US LLP, Media Coalition’s general counsel and lead counsel for the plaintiffs, said, “We are grateful to Attorney General Shurtleff for recognizing that this narrow construction of the statute fully serves Utah’s interest in protecting minors, while also protecting our First Amendment rights.”

Initial media coverage of the ruling is available here and here.

History: Utah Governor Jon Huntsman signed into law H.B. 260 in March of 2005. The law seeks 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 material. Due to the nature of blocking technology, ISPs would sometimes be required to restrict access to websites that are not included in the list and do not include harmful to minors material. More information on the law and Media Coalition’s efforts to oppose its passage is here.

On June 9, 2005, citing free speech and interstate commerce violations, a broad-based group of Utah bookstores, artistic and informative websites, Internet service providers and national trade associations filed a federal lawsuit challenging the constitutionality of a Utah law meant Plaintiffs issued a press release regarding the challenge.

On August 25, 2006, U.S. District Court Judge Dee Benson issued a preliminary injunction blocking enforcement of the law.

On November 29, 2007, Judge Benson ruled on the State of Utah’s motion to dismiss the case for lack of standing. The judge found that most of the plaintiffs have standing to move ahead with the claims related to the Harmful to Minors Act. Media Coalition joined the ACLU of Utah in issuing a press release about the order and opinion.

On July 28, 2008, Judge Benson heard the plaintiffs’ motion for reconsideration. Attorneys for the plaintiffs asked the court to reconsider its previous dismissal of certain claims and parties. Benson denied the motion in all respects.

On April 15, 2009, plaintiffs filed interrogatories, requests to admit, and requests for production of documents.  On May 18, the deadline for all responses, the State responded to the request to admit, but did not respond to the interrogatories or request for documents.

On June 8, 2011 plaintiffs filed a motion for summary judgment with supporting documents in U.S. District Court in Salt Lake City, Utah.

Read plaintiffs’ Press Release on the Filing

Plaintiffs have filed interogatories and requests for production of documents.  The State responded to both, interrogatories and the request for documents.  Both responses were inadequate.  Plaintiffs convened a conference with the Attorney General.

U.S. District Court Judge Benson denied plaintiffs’ motion for reconsideration and affirmed his ruling that The Kings English and others did not have standing in the case.  The case will now be captioned Nathan Florence v. Shurtleff, after Florence, a Utah painter who paints, among other scenes, nudes.  The King’s English and Sam Weller’s Zion Bookstore remain a part of the case as members of ABFFE.  To date, the state has not amended the law during the legislative session to address the constitutional infirmities.

On July 29, the state filed a motion for summary judgement and a motion to dismiss for lack of standing. Utah also filed a combined brief in opposition to the motion for summary judgment plaintiffs filed on June 8 and in support of its own motion for summary judgment and motion to dismiss.

Media Coalition members filed a combined brief on September 9 in further support of its motion for summary judgment and in opposition to the state’s motion for summary judgment and motion to dismiss for lack of standing.

On October 6, Utah filed a motion for judment on the pleadings and a motion to dismiss for mootness. The following day, the state filed a reply to Media Coalition’s response to the state’s motion for summary judgment and motion to dismiss.

On November 21, plaintiffs filed a brief in opposition to the state’s motion for judgment on the pleadings and to dismiss on mootness.

Judge Benson heard arguments on plaintiffs’ motion for summary judgment on April 12, 2012. Coverage of the argument is available here.

Plaintiffs in this case are The King’s English, Inc.; Sam Weller’s Zion Bookstore; Nathan Florence; W. Andrew McCullough; Computer Solutions International, Inc.; Mountain Wireless Utah, LLC; the Sexual Health Network, Inc., Utah Progressive Network Education Fund, Inc.; the American Booksellers Foundation for Free Expression; the American Civil Liberties Union of Utah; the Association of American Publishers; the Comic Book Legal Defense Fund; the Freedom to Read Foundation; and the Publishers Marketing Association.

updated 5/19/12