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"?

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


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  1. icon
    bhull242 (profile), 11 Mar 2021 @ 6:57pm

    Re: Section 230 will surely be found Unconstitutional too!

    Just takes the right case with bit of skepticism and the evidence of the actuality that it's being used by corporations to stifle every "natural" person's 1A Rights, to implement a de facto end-run on 1A, and grant corporations the status of Royalty.

    The 1A right to free speech doesn’t include the right to be heard by anyone in particular or a particular number of people, nor does it include the right to say whatever you want on someone else’s privately owned property—even if it’s open to the public—without consequences from the owner of that property, including but not limited to being kicked off of it. In fact, the 1A doesn’t anyone at all from doing anything unless they’re the government, part of the government, or acting on behalf of the government (outside of certain contracts, but that’s another story). It does include a right not to speak or be forced to host someone else’s speech on your privately owned property. The 1A also includes a right for persons—natural or otherwise—to be or not be associated with other persons if they don’t want to.

    In other words, it is literally impossible for a corporation to stifle anyone’s 1A right to free speech (outside of NDA-type clauses in contracts), and trying to force them to host speech infringes on their 1A rights. But even if corporations didn’t have 1A rights, that still doesn’t mean that the 1A is being run around. Seriously, this is exactly how the 1A is supposed to work.

    And as for “the evidence of the actuality”, the courts have not ruled as it has on such things out of ignorance of what corporations have been doing. They were assuming for the sake of argument that corporations were doing exactly what they’ve been accused of. These were rulings about what the law says, not what it ought to be. Your assumption is that, if they only knew what you did, they would overturn all that legal precedent and agree with you. That’s not how it works at all. Even if the corporations were doing exactly what you say, that wouldn’t change the court rulings one iota.

    Also, even if you were right, how would that give corporations royalty status? And I don’t think you understand what skepticism means.

    Besides, as you note, everyone but a few rabid corporatists HATES it.

    Uh, no, that’s not what they said. It’s mostly politicians, ignorant people, and whiny bigots who hate it.

    It’s also important to note that the haters are extremely divided on why they hate it, and the reasons are irreconcilable. Anti-230 liberals hate that corporations are protected from liability for others’ speech on their platform and that they can’t be forced to remove certain undeserable content (generally); they want to force corporations to do more moderation. Anti-230 conservatives hate that corporations are allowed to moderate whatever and whoever they want however, whenever, and whyever they want to (generally); they want corporations to moderate less. These two positions are irreconcilable, and they’re fairly evenly divided. In turn, each side is unable to consistently agree among themselves what content, exactly, is okay to/must be moderated, what content is okay to/must be moderated, what tools a corporation can use to moderate, or whether §230 should be repealed, replaced, or reformed.

    On top of that, they all operate from a misunderstanding of the 1A and how the internet actually works.


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