SALT LAKE CITY, Utah – In a recently-filed motion, Jess L. Anderson, the Commissioner of the Utah Department of Public Safety and Utah Attorney General Sean D. Reyes, the named defendants in a lawsuit filed by the Free Speech Coalition last month challenging the state’s age-verification law pertaining to sex-related internet content, ask the court to dismiss the FSC’s complaint, asserting that the court “lacks jurisdiction because there is no case or controversy between Plaintiffs and these Defendants.”
Citing the 2021 case Whole Woman’s Health v. Jackson, the defendants assert that “binding precedent from the United States Supreme Court emphasizes that a federal district court lacks power to ‘enjoin the world at large’ or to ‘enjoin challenged laws themselves.’”
“Here, neither Defendant Anderson nor Defendant Reyes is tasked with enforcing the Act,” the defendants argue. “Rather, the Act creates a private cause of action. As Plaintiffs correctly pleaded in their Complaint, ‘the Act creates a private right of action by which Utah residents – and not state actors – are empowered to [enforce the Act].’ The Court cannot enjoin Defendants from doing something they lack statutory authority to do in the first place, nor can the Court treat Defendants as a type of proxy stand-in for parties that might be averse to Plaintiffs in a later lawsuit.”
“Moreover,” the defendants added, “the Court may not declare a law unconstitutional and then enjoin its enforcement without a case or controversy. Such an action would go far beyond the jurisdictional limits of the judiciary defined by Article III and the separation of powers. The Supreme Court rejected this very type of pre-enforcement legal action less than two years ago in Whole Woman’s Health v. Jackson. That case is controlling here.”
In their motion to dismiss, the defendants added that the “lack of a case or controversy between the parties precludes not only injunctive relief, but also Plaintiffs’ pre-enforcement request for declaratory relief. Even for declaratory relief, a plaintiff must still satisfy the Case or Controversy Clause by establishing standing – a redressable injury that is traceable to the actions of defendants.”
Throughout the motion, the defendants argue that the FSC plaintiffs are, effectively, seeking to enjoin potential litigants by proxy, something the State argues the court has no power to do.
“Defendants may not be used as proxies to enjoin any and all unnamed parties who may sue Plaintiffs in the future but are not presently before the Court,” the defendants argue in the motion.
“Allowing Plaintiffs to sue Defendants who do not enforce the Act would upend basic principles of judicial review,” the defendants add in the motion.
The defendants also argue in the motion that the plaintiffs “are not without remedy” if the court dismisses the FSC’ complaint.
“Plaintiffs may complain that the structure of the statute leaves them with no state official to sue in order to challenge this law,” the defendants write. “But the absence of a state defendant ‘is not a reason to find standing.’ Nor does this leave Plaintiffs open to suits across the State with no hope of redress for a constitutional injury. They can raise their constitutional arguments as a defense in an action brought under the Act in state court. A state court may not be Plaintiffs’ preferred forum, but state courts are permitted to consider federal constitutional questions.”
You can read the defendants’ full motion to dismiss here. The FSC’s complaint is available here. The court is scheduled to hear arguments in the case on July 17.
