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Lawsuit will challenge Utah's new anti-porn law

Published May 28, 2005 12:27 am

Constitutional claims: Plaintiffs say HB260 violates the First Amendment and the Commerce Clause
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A coalition of attorneys is drafting a legal assault on Utah's new anti-porn law.

Word of the impending court fight has reached Utah Attorney General Mark Shurtleff, who in response has halted efforts to implement the new law aimed at protecting children from Internet pornography.

"There will be a lawsuit," Shurtleff said. "The ACLU is the one that contacted me and let me know."

Dani Eyer, director of the American Civil Liberties Union of Utah, said her office would withhold comment until the lawsuit is filed in early June.

Shurtleff will wait and see if the court issues a temporary restraining order on the law before he hires an investigator to scour cyberspace in search of objectionable sites.

If a judge hears the case without issuing a restraining order, then "we will probably go ahead," Shurtleff said.

House Bill 260, sponsored by Highland GOP Rep. John Dougall, requires Shurtleff's office to compile a list of sites that appeal to children's "prurient interests in sex." Customers could then demand their Internet service provider to block the sites or to provide filtering software.

Utah companies that create and maintain such pornographic Web sites would have to label the content "harmful to minors." And those who don't comply could face criminal prosecution.

The new law, which includes $250,000 in funding, also creates a new education program to inform parents about the "dangers" found online.

The Attorney General's Office has said the new investigator would work with the Internet Crimes Against Children Task Force, splitting time between creating the pornographic database and hunting down pedophiles. The office has never posted the job.

The expected legal challenge doesn't come as much of a surprise. Lawyers for the Washington-based Center for Democracy & Technology warned lawmakers before House Bill 260 came up for a vote.

The center's attorney, John Morris, is now drafting the suit with the American Civil Liberties Union of Utah and New York City Attorney Michael Bamberger, who has previously represented Penthouse, Playboy and other publishers in similar suits.

They claim Utah's new law violates the First Amendment and the Commerce Clause of the U.S. Constitution.

Since the Internet is global, Utah's law affects legal speech outside of the state, in violation of the Commerce Clause, Morris said. And as to the First Amendment, he said: "There is no practical way for a Web site to ensure a minor will not enter the Web site."

He cites a similar effort in Pennsylvania, where he claims the state blocked 1 million legitimate Web sites to stop access to 400 child pornography sites. Pennsylvania's law was later overturned.

Utah legislators retooled HB260 to avoid the legal pitfalls that Pennsylvania fell into.

But Morris said they didn't do enough.

"All the Legislature really accomplished is forcing the State of Utah to spend money to defend a law that will be overturned."

mcanham@sltrib.com