Friday, May 25, 2012

Fed Judge Pares Utah Law Protecting Minors Online on First Amendment Grounds

The state quarter representing Utah, depicting...(Photo credit: Wikipedia)In Florence v. Shurtleff (Case No. 2:05-cv-00495-DB), United States District Court for the District of Utah Judge Dee Benson this week issued a five-page declaratory judgment and order holding that portions of a Utah Statute intended to shield minors from offensive Internet content violates the First Amendment.

Utah Code Secs. 76-10-1206 and 76-10-1233 were the focus of Judge Benson's Order. Regarding the former, the declaratory judgment states that persons cannot be prosecuted for posting electronic content on generally accessible Web sites unless the individuals negligently directly send inappropriate language or images "harmful to minors" to minors via Email, text message or instant message.  Regarding Sec. 76-10-1233, the Order said persons cannot be subject to civil proceedings or a fine for failing to restrict access to material harmful to minors provided the material in question contains words or images that can be identified by reasonably priced, commercially available software in the public domain. The law had provided for daily fines of up to $10,000 to Internet Service Providers who didn't rate objectionable content for software filtering.

Mandating that Web site operators tag content they deem harmful to children is a First Amendment violation of free speech, Judge Benson ruled. The Order assessed attorneys' fees against the State of Utah to be paid to the various organizations that challenged the law, including Nathan Florence, a Utah artist and Web site operator, the Utah ACLU, the Freedom to Read Foundation and the American Booksellers Freedom Foundation for Free Expression.

Since Utah Gov. John Huntsman signed H.B. 260 into law in 2005, technological advances have been made in software that rendered the need for tags to block Web site images and words moot. The effect of the declaratory judgment is that adult-to-adult constitutionally protected electronic communications (which excludes, for instance, child pornography) on the Internet and other platforms  cannot be restricted merely because minors can access the same platforms.
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