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, U.S. District Judge Dee Benson held May 17. 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. Plaintiffs included a Utah artist; trade associations representing booksellers, publishers, graphic and comic books, and librarians; and the ACLU of Utah.
In 2005, the Utah legislature extended to electronic communications its existing law regulating the distribution of “harmful to minors” content—that is, speech that adults have a First Amendment right to receive but that minors do not. Plaintiffs, led by the Media Coalition, filed this lawsuit that year, arguing that the broadly worded Utah law violates the First Amendment by prohibiting lawful adult-to-adult communications on the Internet simply because a webpage or blog may be seen by a minor, while also compelling online speakers to label or rate such content. According to the Media Coalition, similar overbroad statutes in other states have been held unconstitutional, or have been limited by the courts in a manner similar to the judgment entered in this case.
Plaintiffs’ counsel worked out an agreement with Utah Attorney General Mark Shurtleff on how the law would be implemented, and the new 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” materials to a specific individual known or believed to be a minor, or who send such 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 David Horowitz, executive director of Media Coalition, an organization that represents the trade associations of booksellers; publishers; graphic and comic books; and librarians. “This 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.”
