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Free Expression

‘Harmful to Minors’ Law Would Harm Lawful Online Speech

Yesterday, CDT joined Media Coalition, the ACLU of Utah, and a coalition of booksellers and artists in asking the federal district court in Utah to permanently enjoin a Utah law that would ban certain types of constitutionally protected speech online. Though the law was enacted in 2005 (see CDT’s 2005 Policy Post regarding the law), enforcement of it has been suspended over the past six years, and the Utah legislature has partially repealed or amended some of its provisions. The remaining provisions, however, are still problematic: They seek to limit children’s access to online content deemed “harmful to minors” but would in fact place significant burdens on adults’ own constitutionally protected access to lawful material.

The Utah law threatens criminal penalties for anyone who makes content that is “harmful to minors” available to minors over the Internet. “Harmful to minors” is a somewhat nebulous legal standard that judges the age-appropriateness of content in part by reference to “community standards;” determining which community’s standards apply to online content is a murky question, so content providers have no clear way of knowing whether any of their material might be considered “harmful” to minors. Because website operators and other online speakers have no reliable way to block access to their content by minors, or by users located in Utah, speakers across the country would be faced with the choice of censoring their speech or risking criminal charges in Utah.

Another provision would force content providers – including artists, booksellers, nonprofit organizations, and anyone else who posts material to the web – to label their entire site “XXX” or “not for minors” if it contains any content that could be considered inappropriate for minors to access. This requirement is a flagrant violation of the First Amendment: The government cannot compel a person to speak, and it certainly cannot mandate that speakers use labels that convey the government’s, and not the speaker’s own, evaluation of their speech. Content-ratings systems in the U.S. are run by private entities like the Entertainment Software Ratings Board and the Motion Pictures Association of America for precisely this reason.

There are more effective, and more constitutional, ways to limit children’s access to content that is inappropriate for them. Parents can install content filters on their own devices that allow them to make fine-grained decisions, based on personal values and their children’s age and maturity level, about the type of material their children can view online. The Supreme Court endorsed this user empowerment tools approach in Reno v. ACLU, which struck down the portions of the federal Communications Decency Act as ineffective at protecting children and overly burdensome on lawful speech.

Over the 14 years since the Reno decision, seventeen judges in five judicial circuits have rejected other states’ overbroad attempts to regulate constitutionally protected speech on the Internet. We urge this district court to follow suit, and to finally put this matter to rest in Utah.