Anti-porn bill may be illegal, lawyers warn
Legislative attorneys say the measure may be unconstitutional
That's the concern expressed by a Constitutional Review Note attached to HB260, one of the few bills this session saddled with such a note. In it, legislative staff attorneys warn "the significant restrictions placed on constitutionally protected speech suggest that the adult content registry has a high probability of being held unconstitutional."
Despite the note, Rep. John Dougall, R-American Fork, is confident his bill will pass constitutional muster, primarily because the portion of the bill which prompted the note — the adult content registry — is simply a tool the state would maintain and people could use at their own volition. No one would have their access blocked unless they requested to be blocked, and any company can avoid being listed on the registry by rating the material on their Web site.
Companies would rate their material by using guidelines from the state to identify material that is potentially "harmful to minors." That material is primarily pornographic materials, such as pictures, movies or descriptions of sexual activities.
The bill would establish a method for people to request that sites on the registry be blocked. It also institutes civil penalties for those Internet service providers who do not take the steps necessary to protect minors. Additionally, it appropriates $100,000 for an educational campaign aimed at helping parents prevent their children from accessing or receiving pornography.
"There is a technology gap between what parents know and what children know," Dougall said. "We need to educate parents about what's going on when their kids are online."
Attorney Brian Barnard, who handles a number of civil liberty cases, worries the registry could be expanded to block access to things like medical texts or coffee ads. While he does not expect the bill — scheduled for its first committee hearing this morning to pass this session, the political benefits were evident, he said.
"This law will earn the sponsor a pat on the back for making the world a better place," Barnard said. "But will it protect minors? Maybe. Will it violate the constitution? Probably."
Barnard saw some benefits to the bill, especially the funding for educational materials for parents.
"I like the idea of public announcements to educate parents what their children might find on the Internet," he said. "Education can be a powerful tool."
The "unconstitutional" note on HB260 is significant. Late last year, legislative leaders decided to "tighten up" the old constitutional note process by stipulating that they can only be placed on a bill if specific court rulings can be cited. Previously, individual legislative attorneys, in drafting bills, would consult with their attorney bosses and place cautionary notes at the end of bills that had potential legal problems.
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