Pornography labeling bill in Utah sparks lawsuit warning

(Rick Bowmer | AP file photo) In this Jan. 30, 2020 photo, Rep. Brady Brammer, R-Pleasant Grove, poses for a portrait at the Utah State Capitol in Salt Lake City. A proposal to require warning labels on pornography in Utah passed the state House on Tuesday, Feb. 18, 2020, a move an adult-entertainment industry group called a dark day for freedom of expression. Brammer, the lawmaker behind the plan to mandate the labels about potential harm to minors, says it’s aimed at catching the “worst of the worst.”

Pornography in Utah would have to come with a warning label under a bill passed by the Legislature that has sparked concerns about a potential lawsuit.

The proposal cleared its final hurdle Monday in the Legislature and now goes to Republican Gov. Gary Herbert for consideration. It would mandate a one-sentence warning label about potential harm to minors for online or print material deemed legally obscene. Producers who don’t include the warning could face a $2,500 penalty per violation.

The measure is aimed at helping people worried about the widespread availability of porn online and how easily children can find it, sponsor Rep. Brady Brammer, R-Pleasant Grove, has said.

The label would have to be on any obscene porn entering the state and say "exposing minors to obscene material may damage or negatively impact minors." Producers could avoid the penalty by showing that they have included the label most of the time.

Forcing producers to attach the warning label would be a violation of First Amendment protections against compelled speech and the measure would likely be challenged in court, said Mike Stabile with the Free Speech Coalition, an adult-entertainment trade group.

He pointed to a similar bill from 2005 that was the subject of a yearslong court battle before a judge ordered it significantly narrowed.

Brammer has said his proposal is different because it wouldn't regulate the content itself. It's also aimed at the relatively small slice of pornography that's considered legally obscene and therefore has fewer constitutional protections.

Legal obscenity must be determined by a judge, so the law could still unfairly make a wide range of producers vulnerable to a flood of lawsuits, Stabile argued. That could be doubly true because the law allows for private citizens as well as the state to file complaints, a mechanism based on California laws regulating toxic substances.

"Sure, the lawsuit might eventually be thrown out, but you'll have to spend much more to defend yourself," Stabile said in an email. "The law may be narrowed, but the chilling effect on speech is huge — people not speaking or creating out of fear of prosecution."

Utah lawmakers have a history of addressing concerns about pornography. In addition to the 2005 law, the state declared it a public health crisis in 2016. More than a dozen states have advanced similar resolutions since then.