Appeals Court: Utah’s Age Verification Is Currently Unchallengeable Because It’s A ‘Bounty’ Law
from the bounty-laws-suck dept
A year ago, we wrote about how a challenge brought by the Free Speech Coalition against Utah’s (obviously unconstitutional) age verification law couldn’t go forward because the district court noted (regrettably) that the structure of the law prevented FSC from challenging it before it went into effect.
The issue is that it’s a “bounty” law, in which the enforcement is not done by the state’s Attorney General or some other official, but through a private right of action. That means that any random person can sue someone who they believe is violating the law, and (if they’re right) receive a reward (bounty) down the line. I’m sure that won’t encourage all sorts of frivolous lawsuits from people looking to get free money and/or punish others, will it? These kinds of laws are increasingly popular across the political spectrum. Texas used it in its big anti-abortion law, while California did the same for its gun law.
These approaches are cynical and, well, bad. They’re basically vigilante laws, allowing citizens to sue just about anyone they think is violating the law, even if the violation has no impact whatsoever on the person suing. It’s just a recipe for creating a flood of often frivolous lawsuits. All to “own the libs/MAGA” depending on your state of choice.
One other “feature” of these kinds of bounty laws, though, is that they’re harder to challenge and possibly impossible to challenge before they go into effect. There’s some wonkiness in how challenges to laws work, which were highlighted in Supreme Court’s Moody decision earlier this year. Those focused on the difference between a “facial” challenge and an “as-applied” challenge. Without going too deep into the weeds, the facial challenge is “we’re challenging this whole law as completely unconstitutional with no redeeming value.” The “as applied” challenge would be challenging the law for how it’s applied.
Obviously, for the latter, you have to wait for the law to go into effect. Some might argue that this should be fine, but for many of these laws, there are very serious costs and decisions to be made to try to get into compliance. So if you can’t challenge them until they’re applied, many people and companies may have to waste a shit ton of money for a law that is probably unconstitutional, but which they can’t challenge until they’ve had to pay all those costs.
But, the way that you bring a facial challenge is that you sue the government official who would be enforcing the law. In lots of cases, that’s the Attorney General.
You may have caught up to where this is heading: if the law is “enforced” by a private right of action where random citizens get to bring a lawsuit, there’s no government official to challenge. Neat! Or, no, not neat. The other thing. Crazy. Bad.
So, yes, the Free Speech Coalition challenged Utah’s age verification law (just as it’s challenged other age verification laws elsewhere). But Utah’s age verification is a bounty law. There’s no enforcement by the state, just by random dipshits who want to “own the libs / try to get rich” or something. Thus, the lower court rejected the lawsuit, saying that FSC has no one to sue. At least the district court judge realized the situation sucked and explained that his hands were basically tied.
Free Speech Coalition appealed and, well, the 10th Circuit said, “yeah, hey, sorry, nothing we can do here.”
In sum, the Attorney General does not enforce or give effect to the Act and thus cannot be named as a defendant in this case under the Ex parte Young exception to Eleventh Amendment immunity. And because both defendants are immune from suit, we affirm the district court’s dismissal order without reaching the issues of ripeness and constitutional standing.
Judge Phillips has a dissent (in part) saying that, yes, Utah’s Attorney General can’t be sued to challenge this law, but he believes FSC should be able to sue the Commissioner of the Utah Department of Public Safety, who has some control over the age verification law:
As I see it, the Commissioner has a sufficient connection with SB 287’s enforcement to be sued under Ex parte Young’s exception to sovereign immunity. In Ex parte Young, the Court clarified that a state “officer must have some connection with the enforcement of the [challenged] act” to be exempt from sovereign immunity….
Here, the Commissioner gives effect to SB 287 through his oversight of the mDL program, which, pursuant to Utah’s Driver Licensing Act, directs the Driver License Division to “establish a process and system for an individual to obtain an electronic license certificate or identification card.”
To me, the dissent is compelling, but… it’s also the dissent.
Of course, as we speak, FSC has another case before the Supreme Court regarding the age verification law in Texas. If the Supreme Court follows historical Supreme Court precedent (a big fucking if with this crew of Justices, I know), then we could have a ruling next year making it clear that age verification laws are unconstitutional. That would be useful, but it would still be unclear who FSC can sue in Utah to get its law off the books.
Filed Under: 10th circuit, age verification, bounty law, facial challenge, immunity, standing, utah
Companies: free speech coalition
Comments on “Appeals Court: Utah’s Age Verification Is Currently Unchallengeable Because It’s A ‘Bounty’ Law”
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Seethe more, Sir.
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Why do you support child exploitation, AC?
For these people, that’s a feature, not a bug.
So far, the only example we’ve seen on the liberal side seems to be Cali’s gun law, and it seems specifically designed to call out SCOTUS’s bad faith garbage. I don’t really like it, but I don’t know how else you get them to knock it off.
This is entirely a mess created by SCOTUS in the Texas case, and it’s one where they shouldn’t have opened Pandora’s box, to begin with.
They’re not. The standards for stays are things like To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest.link. (That quote is from the majority in the SB-8 case, mind you. The dissents are even more pointed).
That’s easily satisfied if SCOTUS were interested in not playing shell games. There’s zero reason to grant them the benefit of the doubt on this.
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So far, the only example we’ve seen on the liberal side seems to be Cali’s gun law, and it seems specifically designed to call out SCOTUS’s bad faith garbage. I don’t really like it, but I don’t know how else you get them to knock it off.
From the source article:
The California measure would take effect next year and contains a provision that would automatically withdraw the law if courts strike down the Texas statute before then.
With a clause like that I’d say it’s pretty obviously designed specifically to either force the SCOTUS to expose their hypocrisy or rule against ‘bounty laws’ to get rid of both, so yeah, I’m not a fan of ‘bounty laws’ either and think that they should be banned but if the likes of Texas want to open that box then it seems the best way to show them why it’s a bad idea is to use it against them.
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Sounds like a gambit, hope it succeeds.
Bounty laws seem like a terrible idea.
Re: Re: Thought experiment
I wonder how difficult it would be to create a robust bounty law that allows citizens to sue people who win bounties created by other bounty laws, making it a spoiler.
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Newsom recently signed Assembly Bill 1825, the “California Freedom to Read Act,” which is basically a ban on book bans, so, maybe
call his office with your idea. Ya never know.
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The problem is that the bounty laws are often in states with captured legislatures. You can’t pass a law in one state that makes an activity in another state illegal or punishable and you won’t be able to get the same legislatures to pass their own versions of a counter-bounty law.
GQP looking for and exploiting every loophole they can find to impose their proclaimed (yet not actual) morality on others!
'Look, we just gave them the club and paid them to use it, we're not involved...'
Whether damning of the judges involved or damning of the joke of a legal system it’s downright pathetic that judges are allowing such blatantly obvious unconstitutional laws through, all the more so because all they’re doing is ensuring that this will be the default going forward when states want to do something unconstitutional but don’t think they can get away with it directly.
Sure the state isn’t the one bringing actions but they are the ones who created the law(s) that’s allowing citizens of the respective states to use state power via the courts to bring legal action, and then to really hammer home the fact that the states are not neutral parties providing a financial reward for filing cases, making the idea that the state has nothing to do with the laws and their enforcement utterly absurd.
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Speaking of “we just paid them to use it”, wouldn’t the state officer responsible for paying these bounties be a potential defendant?
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You misunderstand. The government isn’t paying anyone. Under this law, you can sue someone if your kid accesses porn, the porn website doesn’t have age verification, and this results in damages. The porn website you’re suing would be the one paying you if it lost the case. From the bill:
There are only two things that make this slightly special… the age verification is probably unconstitutional, and attorney fees are awarded. Other than that, it’s just like any other law setting out a cause of action. If your state’s defamation law from 1887 is overbroad and covers some protected speech, you’d run into the same problem with having nobody to sue to get it overturned unless someone sued you first.
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Civil actions have always been possible, but thanks to this new law, the plaintiff can claim that a law requiring age verification can be grounds for such a suit. Besides being unconstitutional (1A, etc.) such a thing has always been possible – if you find your kid has been on a porn site, and said site is not supposed to allow kids to view their materials, then you have grounds for a suit already, no need for government permission.
However…. the catch is two fold, One, the State is actively pursuing what it perceives as a valid public interest in openly decreeing porn is bad, and it must be wiped out. But the State (wrongly) thinks that it can escape 1A concerns by simply deputizing individual citizens to do the dirty deed.
And number two is that if an individual must sue the defendant website out of his own pocket…. guess who’s got the better and much more experienced lawyers on their side. If nothing else, trying finding a lawyer who will not keep billing you until the suit is settled. A promise of waiting for a contingency fee only goes so far, and there’s also the infamous “expenses” to be paid up front, by you as the plaintiff. You can be sure that the defendant will drag this out as long as possible, and/or they will win immediately on 1A grounds. What’s not stated in the bill is who pays for lawyer fees if the plaintiff loses. That’s a big risk right there.
All in all, a shit-show of Texas-sized proportions, but still repugnant to the Constitution. Sort of like trying to make a silk purse out of a sow’s ear.
I’m waiting to see who takes a bite of this apple, because it just may come to pass that some ‘under-the-table’ funding may find Joe Bleaux filing a suit, knowing that he’s not gonna be risking his personal possessions. Until then, look for every American-based porn site to geo-block Utah, just like they’ve done in other States.
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If it’s not stated in the bill, then it uses the ordinary rules used by any other lawsuit. It is NOT the case that if the plaintiff loses, the defendant pays the plaintiff’s lawyers anyway, if that’s what you’re asking.
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SCOTUS is pathetic.
Summarized and accurate.
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It doesn’t matter if the state has something to do with it. You cannot sue a state (unless it consents to be sued.) This dates back to the 11th Amendment. If you name the Attorney General of the state as a defendant as a workaround to that, then the Attorney General needs to have something to do with the law, or your case gets thrown out.
Maybe sovereign immunity needs to go away. You’ll need a constitutional amendment for that.
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You’ve misconstrued 11A. It says that no citizen of another State can sue a given State in federal court. It does not say that a State has sovereign immunity against any and all comers. You can still sue your own State, either in State court or in Federal court, that’s possible. In fact, that’s exactly how a defendant (civil or criminal) can claim that a State has deprived him of his rights (to something, anything), and his only recourse is to appeal to the Federal courts.
BTW, in each and every State, the AG is the designated recipient for any service of suit naming the State as a Defendant. The ‘State’ can be any branch of the government (legislative, administrative or judicial), and a suit need not name any individual, but in fact it should name at least one person who is likely the one that instigated the suit in the first place. In our case here, that means that the leader(s) of the legislative body would be the proper party to name, not the AG – he enforces the laws as written, he doesn’t make them up in the first place. (Although in Paxton’s case, he certainly goes a mile’s worth of steps too far in mis-interpreting what the legislature actually said. And his mis-interpretation is what usually makes the news-cycle sound-bites.)
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The 11th technically only applies to citizens of other states, yes, but sovereign immunity is a thing which usually applies when trying to sue your own state without its consent, and that’s not new. See Hans v. Louisiana, 134 U.S. 1 (1890).
There are only three exceptions I am aware of. One is if Congress has expressly provided for a lawsuit under a law designed to enforce the 14th Amendment. (Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).) Another is in bankruptcy cases. (Central Virginia Community College v. Katz, 546 U.S. 356 (2006).) The third is in cases regarding the national defense. (Torres v. Texas Department of Public Safety, 597 U.S. 580 (2022).) I do not believe any of those exceptions apply here.
No, you can’t sue your state in state court unless the state consents. See Alden v. Maine, 527 U.S. 706 (1999).
You’re in wishful thinking territory now. Name one successful lawsuit, in the entire history of the US, that has named the leaders of the legislative body in their official capacities as defendants.
Sounds good.
Seems like a bounty laws need to be made that target :
Large trucks driven by small dicked men
Being a republican
Owning a gun
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How about being a tranny-supporting, faggot Democrat?
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How about you fuck off, dipshit?
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I think that’s enough talk about your porn search parameters Herman.
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This is where the bullshit lies with these bounty laws. The government is what allows private citizens to enforce the law, so the government is a party to the enforcement and can be sued. If there’s no one in government who enforces the law, then the law has no teeth and private citizens couldn’t bring a suit.
It is not a "vigilante law"
A vigilante is someone who self-entitedly takes over law enforcement tasks that state actors should do. But those bounty laws encourage people to self-entitledly take over law enforcement tasks that state actors should not do.
Reminds me of a letter of marque.
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Just wait until Matthew, Luke, and John get involved.
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They are always there, behind the scenes. At least double-imaginary versions of them are.
But if you want letters in particular, imaginary Paul is your guy.
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The walrus?
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Not Ringo?
Re: Re: The other guys
Why can’t John, Paul, George and Ringo get involved?
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And the only reason those laws exist is to give lay people a power that the lawmakers and politicians who write and pass those laws would otherwise give to law enforcment if not for that pesky U.S. Constitution.
God I fucking hate this.
laws shouldn’t be made like this, let alone unconstitutional ones like this.
Is there anything that can be done about it at all?
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Yes actually, and it’s very simple at that: Don’t vote republican, and if you’re up to it work to convince your friends and/or family to likewise not vote republican.
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Hope you cry in November when Trump wins the electoral college!
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You smell like fear… and shit.
Actually mostly shit.
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It’s funny because even Trump supporters aren’t predicting he will win the popular vote.
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It’s funny/not funny that some people are so damn gullible.
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Oh, wonderful!
Unfortunately I can’t vote on account of not being a US citizen but, I wish them well!
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Yeah someone like newsome would never do anything at all similar
drop the red blue bs, they’re all the same
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No, they wouldn’t. Which is why they haven’t, other than precisely one bill explicitly designed to force SCOTUS review and end the practice.
You literally explained why they’re not in fact the same.
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You think that’s the answer? How many Democrats in the state Senate voted against this bill? Zero. How many Democrats in the state House voted against it? Zero. Gee, maybe you should try voting for people based on something other than party, because literally nobody from either party voted against this bill.
Sue “The people of the state of Utah”, rather than a Government official, their name as a group is On enough cases, so they could be a defendant as a whole too.. serve them by public notice for an injunction against enforcement. If any of them don’t show up to defend themselves, ask for a default judgement against them.
And yah I know it doesn’t work that way, but it should fit this kind of law.
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So if I wanted to challenge the part of the Americans with Disabilities Act which allows disabled people to sue for violations of that law… same thing? I just sue “the people of the United States” and ask for a default judgement if any don’t show up? Or is this just for laws you don’t like?
Prenda Law
This is perfect for Prenda Law. They can just keep randomly suing people/companies and settling for a bit less than it would cost to defend the case. Never mind that they are the ones that probably caused the trouble in the first place.
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I’m not sure that Prenda Law is still a thing. But this does bring back happy memories of the entertainment they provided as they insisted on digging a progressively deeper hole and climbing into it.
If we depend on the supreme court that has a majority of conservative republicans that’s a problem they have a record of randomly simply
ignoring legal precedents if they feel like it
The constitution can simply be routed around by making laws that provide a bounty for private citizens to sue other citizens
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To be clear. The moment anyone actually used this law, the courts would be involved. The courts just can’t enjoin the law before there’s a case.
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Using VPN, proxy, or tor is a solution.
There is no law against bypassing geo blocking
I did that when YouTube had to block sesac music to the USA and Europe
Using a VPN to bypass that did not break any laws. I want to get what I am paying for on YouTube music.
I also used VPN when Eurovision had Olympics rights from 2002 to 2012. Their coverage was superior to anythinf and I broke no.laes in either the USA or Australia using a VPN for that purpose
Bypassing geofencung does not break any laws in the United States
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What the actual fuck are you even addressing with your signals opsec spam this time?
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Hun my grandma can use a VPN.
You are such a tryhard dork.
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Trying this hard to sound like some ex-CIA spook who’s passing on SUPER SEKRIT knowledge from THE ULTRA-DEEP DEEP STATE is pathetic. When you mature a little more, you’re going to look back on this act and cringe at yourself—as well you should.
Can that “feature” of not having a government official to sue be turned into an advantage? When there’s a government official charged with enforcing it, he doesn’t have to actually enforce it before he can be sued. Since the law charges every citizen with enforcing it, and those charged with enforcing it don’t have to actually enforce it before they can be sued, can we just sue any random citizen charged with enforcing the law before they actually do anything? After all, the law did make them an enforcer of it…
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You cannot sue any random citizen, because you have no good faith belief that this particular random citizen is going to use this law. (Just like, if you think your state’s defamation law is unconstitutional, you cannot sue a random citizen on the grounds that they could try to sue you for defamation someday.) You could sue a specific citizen before they sued you if that specific citizen threatened to do so.
The issue is that it’s a “bounty” law, which should really be the only aspect of the law to challenge it out of existence.
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The fact that their unconstitutionality can’t easily be challenged is the primary feature of this kind of law. There is no other reason to write a law this way.
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Let’s say a state passes a law that says if you don’t card people when selling alcohol, and as a result a minor drinks, drives, and kills someone, then the family of the killed person can sue you. (I wouldn’t be surprised if this law was actually on the books in some states; I don’t feel like checking right now.)
How is that law meaningfully different from this one? Would you also rail against that law as being a “bounty” and object that there was nobody to sue to stop it from coming into force?
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Dram shop laws already exist, but the significant difference is that usually they involve the bars being liable to the minor they serve or to the victim of an intoxicated driver who they overserve.
This Utah law and other “bounty laws” assign the liability of the supposed perpetrator to any individual, even if they aren’t involved. The Utah age verification literally just says, ” A commercial entity that is found to have violated this section shall be liable to an individual…” and it doesn’t limit the individual to whom they are liable. This makes anyone who is aware of the violation a possible litigant.
The same goes with the Texas abortion ban bounty law. You don’t have to be involved in the woman’s life at all. Anyone in the state can sue if they can provide proof of an abortion occurring. That’s why they’re called bounty laws and that’s why they’re so sinister. They weaponize any ideological opponent as an enforcer.
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Your ellipses hide relevant language. It says “A commercial entity that is found to have violated this section shall be liable to an individual for damages resulting from a minor’s accessing the material“. You still need to have damages, and if I live in Denver and some random kid in Boulder accesses porn, I’m going to have a hard time showing damages.
The Texas law had a provision for statutory damages of a minimum of $10,000. This one does not. That’s an important difference, and one that makes the difference between a “bounty law” and a law which just makes someone liable for something.
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By that argument, the law is useless because nobody could show monetary damages from a minor accessing porn unless the minor spent money. You don’t have to show actual damages if you just claim the access is damages. You just need a sympathetic jury for your bullshit. That’s not going to be hard to find in Utah.
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A parent could argue that their child was harmed and seek damages on the child’s behalf. A random person cannot do that. You’re reading stuff into the law that’s not there.
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No, you’re reading stuff into it that isn’t there. It doesn’t say the person claiming harm has to be a parent. You’re adding conditions not included in the text.
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I’m not saying that only parents can sue, although they’d seem to be the most likely. (I could imagine someone suing if a child had accessed such material on a regular basis and then sexually assaulted the person.)
I am saying that only someone who has suffered “damages resulting from a minor’s accessing the material” can sue, and I base that on the law having the language “damages resulting from a minor’s accessing the material”.
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If the plaintiff claims the access is the damage (i.e. you’re hurting the child by allowing them to be exposed to sexual content), you don’t have to prove other damages like the child sexually assaulting someone.
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You still have to prove that you’re the person the damages should go to. If Luke was damaged by seeing porn, and you are Luke’s father’s brother’s nephew’s cousin’s former roommate, you know what the court will give you? Absolutely nothing! Giving you money will not benefit anyone who actually suffered the damages.
There are generally applicable rules on who can sue on the behalf of a minor. This law does not have to set out the entirety of the Rules of Civil Procedure for them to apply; they always apply unless there’s an express exception. The phrase “shall be liable to an individual for damages resulting from a minor’s accessing the material” as used in this law is not an express exception. (See the Texas law for an example of such an express exception.)
I think that getting the populace to self report, aka rat out your neighbor, is one of the line items in the Dictators Handbook.
Who do you use?
That would be John Doe!
Can't they then just pick a sympathetic person to work with?
Since anyone in Utah can sue anyone for “violating” this law couldn’t they find a sympathetic person in Utah to go after the company of their choice so they could then challenge the legality of the law? They would still have to wait till it goes into effect but they would be able to then control who/what/when was sued and challenge the law
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That’s dicey, because the company becomes liable if a minor accesses porn. If you’re showing a minor the porn on purpose just to challenge the law… well, there might be other laws that have something to say about that. Ones that have more sting to them than just a financial judgement, and ones that are much less likely to be found unconstitutional.
Look it up; you know you've never heard of them
So… how much longer, do we figure, until the Mormons running Utah just go ahead and bring back the Danites?