SALT LAKE CITY – In April 2016, Utah passed a nonbinding resolution declaring pornography a “public health crisis.” Now, the sponsor of the resolution says he’s working on a new bill that would enable residents of the state to sue porn producers for damages resulting from exposure to porn.
“Right now porn is available without any warnings and labeling, without any protections online,” Republican State Sen. Todd Weiler said, ignoring the fact a great many porn sites have both warning pages and meta tags identifying their contents as sexually explicit so content filters may block them. “This would just open the valve for a cause of action. Let these attorneys go after these cases.”
As an attorney, Weiler suggested he’s sensitive to concerns about the constitutionality of his proposal, but he assures us the idea of consumers suing porn producers over their product has plenty of precedent — so long as one accepts the underlying assertion porn is an addictive substance, that is.
“I’m trying to kind of track the same path that was taken against tobacco 70 years ago,” he said, broadly suggesting there’s no distinction between the regulation of controlled substances and the regulation of expressive works that are presumed to enjoy the protection of the First Amendment unless a jury finds them obscene.
If this proposal is constitutional, as Weiler contends, what’s to stop any given consumer from filing similar cases against producers of any expressive work perceived as “damaging”?
In making his case for treating porn like alcohol and tobacco, Weiler contends it’s naïve to suggest the porn’s ubiquity isn’t causing problems.
“I’m looking at where we can push the envelope as a state of Utah,” Weiler said. “To pretend that this is not having any impact on our youth, on children’s minds as they’re developing, as their attitudes towards sex and the opposite sex are being formed, I think is foolish.”
His argument may sound sensible to the average social conservative, but imagine the shoe being horned onto the other foot, as it were. Imagine a legislature elsewhere deciding, for example, all this exposure to violence on TV and in films is having an impact on children’s minds, and we should therefore pass legislation enabling consumers to sue HBO over Game of Thrones, or take Netflix to court because they think Daredevil crossed the line into gratuitous violence in its second season.
Presumably, Weiler would consider all of that just fine, because he thinks so long as we require plaintiffs to prove the claimed harm in court, there’s no issue with encouraging nuisance lawsuits against people who produce material of which he doesn’t approve.
Also, lest you think there’s some hint of prior restraint lurking in his proposal, Weiler says this entire proposal has nothing to do with censorship or government meddling in the realm of consumers’ entertainment choices.
“It’s not government coming in and saying what you can and can’t watch,” Weiler said. “It’s just basically a message to the pornography industry that if someone in Utah can prove damages from the product, that they may be held liable financially.”
See? No problem there — and I’m sure the makers of Grand Theft Auto are nodding their heads in collective agreement. Clearly, it’s one thing to reasonably contend Brazzers is responsible for turning your son into a pervert, but a whole other kettle of insane, nonsensical fish to assert Rockstar Games turned him into a juvenile delinquent who runs around stealing cars and shooting people for fun.
Weiler hasn’t published or officially offered his bill for consideration by his legislative peers yet, so there’s no statutory language to scrutinize. Digging into the language of the bill is something I’m sure many attorneys will be eager to do, either because they want to get in on the ground floor in terms of suing pornographers, or because they can envision a day when they’ll have to defend their pornographer clients from such lawsuits.
As the old saying goes, the Devil’s in the details, so we’ll just have to wait and see what sort of hellish creatures Weiler has summoned in the language of this soon-to-be bill. In the meantime, we’re left to wonder what Weiler will come up with next in his ongoing crusade to brand himself Utah’s champion of decency.
Who knows? Maybe this time next year, residents of Utah will be licking their chops at the prospect of suing NBC over its airing of the The Apprentice, due to ongoing damage done to them by its former host.
