The American Civil Liberties Union of Utah (ACLU) [official website] on Wednesday asked a federal judge to permanently block [press release] a Utah law that restricts Internet speech. Utah Code §§ 76-10-1206 and 76-10-1233 [texts] regulate Internet material, including artwork, photography and graphic novels that might be "harmful to minors." In its memorandum [text, PDF] supporting the motion for summary judgment [text, PDF], the ACLU argues that the statutes violate the First Amendment [text] and the Commerce Clause [Cornell LII backgrounder] and are unconstitutionally vague. The ACLU contends that the burdens of the Utah statutes outweigh the benefits:
Although protecting minors from material harmful to them is an important goal, it is a goal the Challenged Statutes cannot achieve. The State concedes that the Challenged Statutes "will not reduce the availability in Utah of material that may be harmful to minors over the Internet." This conclusion is almost unavoidable in light of the fact that a significant portion—perhaps even most—of all sexual content on the Internet is hosted overseas (and is thus far outside of the reach of the Challenged Statutes). In light of these facts and the State' concession, no significant local benefit exists. On the other hand, the burdens associated with the Utah statutes are substantial and include chilling the First Amendment activities of entire classes of adult Americans.The statutes, which were passed in 2005, have not been enforced because Utah consented to a temporary injunction.
In 2008, the US Court of Appeals for the Third Circuit [official website] affirmed [decision, PDF; JURIST report] a lower court's decision [PDF; JURIST report] granting a permanent injunction against enforcement of the Child Online Protection Act (COPA) [text], a federal law that imposes civil and criminal penalties on website operators for making sexually explicit materials available to minors over the Internet. The ACLU lauded [press release] the Third Circuit's decision, calling it a "clear victory for free speech." In 2004, the Supreme Court ruled [JURIST report] in Ashcroft v. ACLU [opinion, text] that COPA was likely an unconstitutional violation of free speech and remanded the case to a lower court for findings on what technology, if any, would allow adults to see and buy material while keeping that material out of the hands of children.