Utah Legislature Wraps Up Session By Passing Two Unconstitutional Internet Bills

from the nice-work,-everyone dept

Last week we wrote about the many, many, many constitutional problems with a bill proposed in Utah to try to tell internet companies how they can moderate content. As we noted, the bill clearly violates the 1st Amendment, the Commerce Clause, and is also pre-empted by Section 230.

So, of course, it passed.

The Salt Lake Tribune report has a stunning set of paragraphs that demonstrate that supporters of the bill not only ignored many, many experts telling them the constitutional problems with the bill, but they then pretended no one notified them of those concerns (this is blatantly false):

“What we are talking about here are large, private forums that are free to moderate themselves and to put up what they want to put up and censor and kick off those people they choose to,” added House Minority Leader Brian King, D-Salt Lake City. “If we pass this bill, the Utah taxpayers are going to pay large amounts of money to defend the constitutionality of this bill against a lot of large entities that have many resources.”

Brammer shot back that he was not made aware of any constitutional issues with the legislation. However, a legal analysis from the Office of Legislative Research and General Counsel shared with The Salt Lake Tribune raises several potential constitutional and legal problems.

Legislative attorneys advised that HB228 may violate the First Amendment by compelling speech through requiring these companies to provide information about their moderation practices, although that may not be an impermissible burden given their vast resources.

The memo also warns the bill could violate the Constitution by placing an “undue burden on interstate commerce.”

Finally, the legislation might be unenforceable because of provisions in the federal Communications Decency Act.

It's one thing to ignore me -- I'm just a loud mouth blogger. But to flat out ignore the points raised by legislative attorneys, making it clear that you're going to waste a ton of taxpayer money? That's just obnoxious. Rep. Brady Brammer should be ashamed.

And that wasn't the only unconstitutional tech-related bill the Utah legislature passed as it wrapped up its session. It also passed a porn filter bill that would mandate a porn filter on any phone, computer, tablet or other electronic device.

Just like the many, many, many other attempts at such bills, this one is also blatantly unconstitutional. In the key case that made all of the Communications Decency Act (minus Section 230) unconstitutional, Reno v. ACLU, the Supreme Court (with a 9-0 vote) made it quite clear that governments cannot mandate the blocking of pornographic material online. In that case, the Supreme Court went through many reasons why governments don't get to mandate filters for indecent content.

Utah's legislators haven't even attempted to address any of those concerns. Incredibly, the Salt Lake Tribune quotes even those who voted for the bill as saying that the bill has serious problems and will require follow up legislation to fix.

“As much as the intentions of this bill are good, logistically it just won’t work,” Anderegg, R-Lehi, said. “And I think if we pass this bill, it sends a good message. ... But we absolutely will be back here at some point in the future, maybe even in a special session to fix this.”

Anderegg ultimately voted in support of the bill, saying that while he has “a lot of trepidation” about the bill, he doesn’t “want to be the guy” who opposes an attempt to shield children from graphic content.

Incredible. Admitting you voted for a bill that you know won't work.. and saying you have to to protect the children, is quite an admission. The bill not only won't work, it's unconstitutional. And that's not the kind of thing you fix in a "special session." You just don't pass unconstitutional bills.

And if the goal is not to have children looking at porn, why not... let parents do their jobs and if they want to install a filter, let them do so. Remember "personal responsibility"?

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: content moderation, filters, free speech, internet, porn, porn filters, social media, utah


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 10 Mar 2021 @ 11:20am

    Anderegg ultimately voted in support of the bill, saying that while he has “a lot of trepidation” about the bill, he doesn’t “want to be the guy” who opposes an attempt to shield children from graphic content.

    Hmmm. I'm afraid you are starting in the wrong place then. If you really want to start 'shielding children from graphic content' you better ban breastfeeding. I mean "WOW' that's pretty graphic. And it's not just visual either. Also better ban natural birthing. That's just a horrible thing to inflict on a child.

    /s

    On a more serious note: I think inundating children with that sort of content isn't good, but pretending the world is fundamentally different than it is will actually hurt the child. Humans are sexual creatures, and embarrassing, and uncomfortable as it is to admit.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.