Utah's anti-porn law has survived a legal challenge, but that doesn't make it constitutional 

In June, Salt Lake City Weekly published my feature examining the potential harms to civil liberties raised by Utah's Senate Bill 287. Introduced this past legislative session by Sen. Todd Weiler, R-Woods Cross, and Rep. Susan Pulsipher, R-South Jordan, SB287 requires adults using Utah IP addresses to verify their age in order to access pornographic materials online.

The new law was challenged in federal court by the Free Speech Coalition—a trade organization and advocacy group representing the online adult entertainment industry—and a class of plaintiffs involved in the adult entertainment industry and its adjacent business segments. Plaintiffs claimed that SB287 violates the First Amendment rights of adult consumers and the firms that produce and distribute legal pornographic material, arguing the law is a means for social conservatives to censor forms of speech that they disfavor.

Litigants also accused SB287 of directly contravening long-standing case law in the U.S. judicial system and harboring disregard for the federal government's constitutional supremacy in regulating interstate and foreign commerce.

The lawsuit targeted members of the administration of Utah Gov. Spencer Cox and other state leaders, alleging that their enforcement of the law would be tantamount to censorship. A federal judge ruled against the plaintiffs, however.

"Regarding the policy at issue, the innocence and safety of our children are paramount and worth protecting ardently," Utah Attorney General Sean Reyes said on Aug. 1, after U.S. District Judge Ted Stewart dismissed the Free Speech Coalition-led lawsuit. The ruling was, in Reyes' words, "a victory for the rule of law."

But in characteristic fashion for the hyper-partisan Reyes, the Utah AG glossed over a crucial detail in Stewart's order granting the state's motion to dismiss. That detail is how Stewart noted in his memorandum that SB287 is structured as a so-called "bounty law," which bars Utah's state officials from directly enforcing the age-verification requirement.

Instead, enforcement of SB287 is contingent on private citizens filing suit against alleged violators, with Utah relying on the courts to set legal boundaries through case law by determining when and what penalties are warranted.

In that sense, SB287 only has teeth so long as a state court chooses to issue a private civil enforcement action against violators of the age-verification requirement.

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"While these laws are likely unconstitutional, lawmakers have created a situation where the laws are difficult to challenge due to the requirement that any challenger have legal standing to sue and that the court can redress the constitutional injury," explains Larry Walters in an interview for City Weekly.

Walters is a First Amendment attorney who often serves as counsel for adult industry clients. He is the managing partner of his namesake firm, Walters Law Group, and is involved in a vast array of litigation including Woodhull Freedom Foundation's efforts to render unconstitutional the controversial FOSTA-SESTA statutes—adopted by indicted former President Donald Trump and ostensibly intended to combat sex trafficking. But that's beside the point.

The point is that Walters is one of dozens of attorneys this journalist has spoken to in the weeks since Judge Stewart dismissed the SB287 case. And the issue at hand is whether it was a viable strategy for the plaintiffs to sue for a preliminary injunction against the bounty law when it was structured as such.

It was the narrative that SB287 could be blocked through more traditional legal remedies that prompted much of the reporting in my previous City Weekly piece, "The Holy Firewall." With the Free Speech Coalition's lawsuit failing on technical grounds, SB287 remains the law of the land without answers to the serious legal questions that surround it and similar efforts around the country.

"Until a third party brings a suit under one of these laws, the constitutional issues may remain unresolved," Walters said. "The continued existence of these laws, without an effective method to challenge them, compounds the chilling effect as operators are forced to make risk decisions in an uncertain environment."

Bounty laws aren't new concepts, and it most certainly isn't always a bad thing to allow private citizens to seek redress directly through the courts rather than relying on regulators. But recent years have proven problematic as lawmakers push these structures to their breaking point.

The negative connotation of bounty laws can be traced back to 2021, when the Texas Legislature adopted Senate Bill 8. Dubbed the "abortion bounty law" by its critics, it empowers private citizens to sue individuals and groups suspected of aiding or abetting an abortion within the state borders.

Pro-life activists have abused the law, which similarly bars all state officials from enforcing its provisions and even lays out a basic framework to punish medical providers and pro-choice activists for supposed violations. But Texas has failed to effectively enforce SB8 through private civil enforcement actions, because state and federal courts over the past two years have ruled that it is overly broad and unconstitutional for various reasons.

This, however, didn't prevent the debate on the efficacy of the Texas abortion bounty law rearing its head in the ruling issued by Judge Stewart in Utah and the case dealing with age verification.

At length, Stewart cites the U.S. Supreme Court's recent ruling in the case of Whole Woman's Health v. Jackson, which was filed as an emergency appeal by local abortion rights activists seeking an injunction to block Texas' SB8 at the time. The conservative-dominated high court ruled that the plaintiffs couldn't sue Texas judges, court clerks, the attorney general or state officials, generally, to prevent the filing of private civil enforcement actions as is structured under the law.

Judge Stewart relied on this in his dismissal as justification, while dodging any advisory on the fundamental constitutionality of the state's age-verification requirements, as outlined in SB287.

Reyes fawned over Stewart's choice not to issue an advisory by stating that "a federal court may only decide appropriate cases or controversies and not issue advisory opinions concerning the law."

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This is standard practice, as the Supreme Court has previously determined that advisory opinions aren't justified under the U.S. Constitution. But that doesn't mean that there isn't a legitimate concern for the constitutionality of the law and how it is to be interpreted by first-level state and federal courts. A blueprint for adult industry activists and attorneys can be seen in a recent decision on the Texas abortion bounty law.

Rolling Stone reported on Aug. 8 about the latest chapter in the case of Zurawski v. State of Texas. The Center for Reproductive Rights filed this lawsuit against Texas, seeking much-needed clarification regarding emergency medical exceptions outlined in SB8, which effectively bans all abortions in the state.

A district judge rendered much of the law unconstitutional because it was too vague. Just hours later, the Texas attorney general's office—currently led by Angela Colmenero after far-right Republican Ken Paxton was impeached by the state Legislature—appealed the ruling.

The lower court's ruling was a small victory for reproductive rights activists, but it is clear that this sort of state law—a bounty law—requires a higher appellate court with greater purview to ultimately decide whether it's constitutional.

"The interests of the adult entertainment industry, or the negative effects of these laws—such as infringement on free speech, the ghettoization of disfavored content, diminished privacy rights and increased likelihood of data breaches—are routinely ignored," Walters said. "We are likely to see more of these efforts since bills were already introduced in other states but failed to pass. They will be re-introduced next year, and some new states will likely consider similar legislation. We have no reason to believe that supporters of these bounty laws will give up their efforts."

Walters couldn't be more correct. In my time covering the adult entertainment industry, politics and legal issues never seem to favor outcomes that present this segment as a legitimate avenue of law-abiding, tax-paying and country-loving Americans. On the contrary, the U.S. porn industry is as American as apple pie—no dirty joke or American Pie reference intended.

It's sad that this form of expression is considered by social conservatives—including the Latter-day Saint-dominated GOP in Utah—not worth defending. This logic puts the right to free expression for everybody at risk.

In fact, the furthest-right of these people see porn as pure obscenity and wish to suspend all of the First Amendment protections for the producers and advocates of this type of speech. And while they might chafe at the comparison, this type of blanket condemnation would be akin to altogether outlawing the practice and worship of The Church of Jesus Christ of Latter-day Saints. In no conceivable case would progressives or conservatives—regardless of their views on the Latter-day Saint faith—go as far as outlawing an entire religion and stating that its adherents aren't subject to First Amendment protections. That would be fascistic.

But that is what's happening when social conservatives who are afraid of their own shadows try to impute their moral objections into actual web regulations, and onto a broad industry of diverse professionals.

Utah's leaders have no right to regulate adults the way they are attempting to. Claiming it is for the protection of children is one of the oldest political lies in the book.

SB287 will continue to chill legit forms of speech until it is appealed. Luckily, the Free Speech Coalition has announced that it will appeal to the 10th Circuit Court of Appeals in Denver to continue the fight against this terrible statute.

Michael Dean McGrady Jr. is a Colorado- and Missouri-based journalist and commentator focusing on the adult entertainment industry.

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