Children are gaining increasing access to the Internet. Through a multiplicity of devices in their homes, schools, and communities—ranging from smart phones, to laptops and tablets, to family computers—kids now have access to the Internet, and with Wi-Fi, they have that access practically everywhere they go. Thus, it is becoming easier for kids to find or stumble upon pornography or other content that parents might find harmful, obscene, or otherwise objectionable. And to some extent, filtering will not solve the problem, as we cannot practicably install filters on every device through which a child might gain access to the Internet.
In 2005, the Utah legislature passed a law that (1) criminalized knowingly or intentionally disseminating harmful content to minors, and (2) required website operators to tag or label such content in such a way that the tags or labels can be picked up by search engines. Both aspects of the law, which I will discuss in this column, became the subject of a long legal battle, which began in 2005 and has just now ended, with an order that issued on May 16th.
The Judge’s Resolution of the Utah Internet Tagging/Labeling Dispute
The Utah law that I described above was challenged by artists, writers, and others who use the Internet and were afraid that their online comments and content could be deemed criminal if they were found to be harmful to minors, but had not been labeled as such. At the end of last week, U.S. District Judge Dee Benson issued a declaratory judgment in the case that both protects free speech and attempts to protect minors from being the targets of improper or obscene material.
Pursuant to the ruling, those who post content on the Internet that might be deemed “harmful to minors” cannot be prosecuted simply for posting that content on a general website without any accompanying disclaimers. Yet adults who knowingly transmit harmful context to minors—via email, text or other modes of communication—may face criminal charges.
The ruling is seen by many as both a victory for Internet free-speech advocates, and a narrowly-tailored solution that renders the Utah law workable. In this column, I will discuss the history of the case, the court’s ruling, and why I believe the court struck the right balance.
The Case: Florence v. Shetloff
In June 2011, the ACLU and a coalition of other free-speech groups, including the Center for Democracy and Technology, joined Utah artist Nathan Florence, a group of publishers of graphic novels and comic books, and a group of librarians, in filing suit against the State of Utah. The suit challenged the law that I described above, claiming that the law infringed on the free-speech rights of the plaintiffs and many other individuals who use the Internet.
At issue in the current proceeding are two separate provisions of the Utah Criminal Code. Section 1206 makes it illegal for a person—who knows or believes that another person is a minor, or has negligently failed to determine the proper age of a minor—to intentionally distribute or offer to distribute, or exhibit or offer to exhibit, “to a minor or a person the actor believes to be a minor, any material harmful to minors.” Section 1206 contains an exemption for Internet Service Providers and hosting services, but contains no express exemption for website operators. To the ACLU and other plaintiffs, it was unclear whether Section 1206 would prohibit the mere posting of harmful content online, that was aimed at adults, but which might be viewed by minors.
In turn, Section 1233 provides that an Internet content provider domiciled in Utah “shall restrict access to material harmful to minors” by “properly rating content” or “by any other reasonable measures feasible under available technology” so that a consumer is “actually apprise[d]” of the “[p]resence of material that is harmful to minors.” This provision is meant to allow consumers (presumably, parents, guardians, and teachers) to use filters to screen and block content. Utah’s penalty for violations would have left website operators exposed to fines of $10,000 per day for failing to label harmful content so it could be detected by Internet filters before it was viewed.
The plaintiffs asked the Salt Lake City-based federal district court to issue a permanent injunction barring enforcement of the Utah statute on the ground that it restricts constitutionally protected speech. They argued that Utah’s law was overly broad and unconstitutional in attempting to regulate all Internet speech that may be considered “harmful to minors.” Such a law, they argued, would result in restrictions on many types of valuable content—visual art; photography; information about the rights of lesbian, gay, bisexual, and transgender (LGBT) youth; and information relating to sexual health and safety.
In August 2006, the district court entered a preliminary injunction, which blocked the enforcement of the challenged sections of the statute.
The Origin and History of the Utah Laws
When Utah State Rep. John Dougall introduced House Bill 260, it called for the creation of a content “rating system” for websites and a registry for websites with adult content. Under the bill, consumers could use tools to block material that was listed on the public registry. A group called Citizens Against Pornography applauded Dougall’s effort, describing the law as an effort to give parents more control over what their children view on the Internet. Utah could require only those providers located within Utah itself to adhere to the proposed regulations, due to interstate commerce concerns. The bill became law following the 2005 legislative session.
Also in 2005, the Utah legislature extended its existing law regulating the distribution of “harmful to minors” content—that is, speech that adults have a First Amendment right to view and receive, but that minors do not—to reach electronic communications like email and the Internet. In June 2005, the ACLU filed in federal court a lawsuit challenging the constitutionality of the law and alleging that it violated interstate-commerce law. The suit was filed on behalf of a large and diverse coalition including the American Booksellers Foundation for Free Expression, the Association of American Publishers, and the Comic Book Legal Defense Fund.
The plaintiffs argued that the broadly worded Utah law violated the First Amendment by (1) prohibiting lawful adult-to-adult communications on the Internet simply because a website or blog post might be seen by a minor, and (2) requiring online content creators to label or rate harmful-to-minors content. According to the plaintiffs, similarly overbroad statutes in other states have been struck down as unconstitutional, or limited by the courts, on First Amendment grounds.
In 2007, the Utah statute was amended, but the plaintiffs argued that it still barred the posting of certain forms of visual art and photography, and graphic novels, without a “harmful to minors” warning, and still would reach First-Amendment-protected information about health and human sexuality. As a result, the law was amended again, in 2008.
The Court’s May 16, 2012, Order
Then, on May 16 of this year, Judge Benson issued an order and declaratory judgment regarding the meaning of the Utah statutes at issue. (A declaratory judgment is a judicial directive stipulating the proper interpretation of a given law.) The judge ruled that “no one can be prosecuted under Section 1206 unless the person is in direct communication with a specific recipient—such as with person to person emails, instant messages, texts and the like.” Judge Benson also noted that “Section 1206 does not apply to the posting or provision of content, whether words or images or both in generally accessible websites.”
With respect to the issue of content-labeling, Judge Benson held that website operators are not liable under Section 1233 for posting content that may be deemed harmful to minors, as long as the words or images can be detected by commercially-available software. Put another way, under the ruling, websites do not have to monitor and rate their content and label it.
Moreover, under Judge Benson’s order, no one can be prosecuted for posting content that is constitutionally protected for adults on generally accessible websites, nor is anyone required by law to label such content. In addition, Judge Benson’s order expressly forbids any prosecution under the Utah law from occurring, except when someone sends inappropriate images or language directly to a child through email, text, or instant messaging.
“This declaratory judgment makes clear that adult-to-adult communications on the Internet, and through other electronic means, cannot be restricted simply because minors also access the Internet and other electronic communications,” said David Horowitz, the Executive Director of Media Coalition, an organization that represents the trade associations of booksellers, publishers, graphic novels and comic books, and librarians.
Judge Benson’s ruling stands for the proposition that Utah’s law was a violation of the U.S. Constitution’s First Amendment insofar as the statutes required website operators to tag words or images that might be considered harmful to minors. Judge Benson also ruled that Utah must pay the legal fees of the organizations that successfully challenged the law.
Why Judge Benson’s Decision Was the Right One
There are two parts to the court’s ruling and when combined, they strike an appropriate balance between trying to protect minors, and trying to preserve the First Amendment rights of adults to communicate openly on the Internet about important topics that may be considered harmful to minors, but are appropriate and important for adults to discuss.
Benson’s order removes a “cloud cast over Internet speech,” said John Mejia, the Legal Director of the ACLU of Utah, which had feared that its own website content on gay rights could leave it open to prosecution under the law.
Currently, there are many tools available to assist parents and other caregivers in providing children with access to only that content which has been screened for appropriateness. Continuing to allow these caring adults to protect and guide the minors in their care—in part by selecting the Internet screening tools that they think best—is a better solution than invoking the criminal law to punish websites that may be purely meant for adults when they do not screen their content and tag it as “harmful for children.” At the same time, the law leaves open the possibility that a person who has the malicious intent to target a child by sending him or her sexually explicit material can be prosecuted for doing so.
This case also underscores a larger point that has been made by many commentators—perhaps most recently in a thoughtful piece in the New York Times: Even the best filters cannot keep kids away from Internet-enabled devices and possibly harmful material. Thus, instead of looking to filters, parents should develop a new set of talking points to help kids cope with the explicit material that they will inevitably stumble upon on the Internet, despite parents’ best efforts to protect them from such material.