SALT LAKE CITY – Last month, a district court in Utah dismissed a lawsuit filed by the Free Speech Coalition (FSC) and other plaintiffs challenging the state’s age verification mandate, because none of the state officials named as defendants in the lawsuit “has a particular duty to enforce” the law in question.
The reason no Utah official has a particular duty to enforce the law, of course, is the law leaves it to the citizens of Utah to enforce its provisions, by creating a “private right of action” to sue websites that fail to comply.
Thus far, across all the states which have passed similar laws, not one citizen has stepped forward to file such a lawsuit, so far as I’m able to determine – a curious thing, given the fact supporters of this sort of legislation would have us believe there’s a legion of aggrieved parents out there dealing with porn-addled minors clogging the family WiFi with constant downloading of freely available online smut, simply champing at the bit to hold someone in the adult entertainment industry accountable.
The lack of civil lawsuits being filed under the state’s new age-verification law is likely part of the reason the sponsor of the Louisiana statute, State Rep. Laurie Schlegel, decided to cook up a companion law, under which the state can fine sites up to $5000 per day for noncompliance.
Another way of putting it: When it turned out the chilling effect of her original legislation wasn’t as broad or deep as she’d hoped, Schlegel decided it was time to add the overt threat of direct government action to the vague, potential threat of civil complaints filed by Louisiana residents.
Passing the new law might have been a strategic error on Louisiana’s part. Unlike Schlegel’s original bill, Louisiana can’t argue in court that the state’s officials “have no particular duty to enforce” the new law, because the statute expressly provides for “investigation and pursuit of actions by the attorney general.” Without the get-out-of-court-free card offered by a law limited to enabling a private right of action, Louisiana will find itself having to defend against a plaintiff’s constitutional arguments, where history suggests the state faces an uphill fight.
So, why haven’t we seen any lawsuits filed against adult website operators under these laws? We can only speculate, but my sense is that for many potential plaintiffs, the enthusiasm to sue might dwindle somewhat once they speak to an attorney about the realities of what such a lawsuit would entail.
First, many of the noncompliant websites one might encounter on the internet are not based in the U.S., let alone the state in which a plaintiff might reside, complicating the question of whether the court can assert jurisdiction over the website and its operators. Even assuming the court did rule it had jurisdiction over the foreign entities, and going one further and assuming the plaintiff were to prevail (by winning a default judgment over a foreign defendant who never responded to the complaint at all, for example) collecting the damages might be where the real challenge would begin for the plaintiff.
Even in a far less complicated scenario, in which a plaintiff sued an adult website operator based in the same state as the plaintiff (a relatively unlikely circumstance in the context of states like Utah, Mississippi, Arkansas and Montana, I think it fair to say), the plaintiff would then have to defeat some of the same constitutional arguments Utah just avoided having to address in the recently dismissed FSC lawsuit.
As noted by District Judge Ted Stewart when he dismissed the FSC’s case in Utah, “it may be of little succor to plaintiffs, but any commercial entity sued under S.B. 287 ‘may pursue state and federal constitutional arguments in his or her defense,’ they just cannot receive a pre-enforcement injunction against the two named defendants.”
Imagine yourself as someone who reads an article or press release about a new state law which enables you to sue porn sites for failing to comply with your home state’s new age-verification mandate. You might just think to yourself: “This porn site isn’t complying with the new law, my kid visited the site and was exposed to porn… it’s a slam dunk. Let’s call that one lawyer guy from the TV, immediately!”
Let’s assume you then contact an attorney, and the attorney is sufficiently ethical to provide a legitimate risk/benefit analysis, rather than simply nod while you’re speaking, have you sign a retainer agreement and take your money. That hypothetical attorney might caution you the lawsuit you’re contemplating is going to be expensive, take quite a long time to litigate, pit you against a corporate defendant with a lot more money at its disposal than you and possibly lead to a judgment you can’t collect anyway.
So… are you still eager to sue?
This is not to say there’s no threat from the prospect of a civil lawsuit being filed under these state laws, or to diminish the burden defending such a lawsuit would present to an adult business as the defendant in such an action. After all, some of what the hypothetical attorney postulated above has to say would be equally true for the defendant, particularly when it comes to the “expensive” part.
The shitty part here, regardless of the outcome of any eventual legal wrangling flowing from these age-verification laws, is in the meantime, any website to which these laws might apply are faced with a choice they shouldn’t have to make: Do I comply, to the extent compliance is even possible, with a burdensome law, block the state(s) that passed the law, or ignore it and risk being hauled into court?
Unfortunately, even if a judge thinks these laws enforced via a “private right of action” are of questionable merit, he might also feel constrained in acting on that view.
To again quote Judge Stewart, “the Court acknowledges plaintiffs’ concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important constitutional questions. The wisdom of such policy decisions is best left to the other branches of government.”
Sadly, it seems if there’s one thing on which we can’t rely, it’s the wisdom of those other branches of government.