Utah governor Spencer Cox has signed the infamous porn filter bill. If enacted, smartphones and tablets purchased in Utah will automatically block a potentially sweeping range of content based on fluctuating value judgments. There’s plenty of time, for now, in the sense that it’s the legislative equivalent of an active volcano.
Under HB 72, a porn filter would be automatically installed on all phones and tablets sold in Utah after January 1st, 2022. Phone manufacturers would have to provide users a passcode in order to unblock an app or site, presumably as an effective adults-only password. The law states that a manufacturer “reasonably precludes a user other than a user with a passcode the opportunity to deactivate, modify, or uninstall the filter.” Manufacturers would be charged $10 for every violation.
At the moment, it’s less of an immediate plan of action than a challenge for other states to join Utah. It only goes into effect if five other states pass and enact similar laws and expires if they don’t by 2031. “We really want to empower parents,” Cox has said, according to the AP. “If nothing else it sends an important message.”
The measure isn’t entirely symbolic. As the AP has reported, at least 16 other states have previously jumped on Utah’s bandwagon in declaring porn a “public health hazard.” The state’s 2016 anti-porn resolution called for “prevention” and “policy change” to address the nation-wide “epidemic.” And Utah has tried versions of porn restrictions for decades.
The law doesn’t deign to reference the word “porn” but refers to material that is “harmful to minors.” Under Utah law, “harmful to minors” is sort of elementary school rules, which could go so far as including a person who is construed as sexy. It comprises any form of “nudity, sexual conduct, sexual excitement, or sadomasochistic abuse,” which can’t be shown when:
(i)taken as a whole, appeals to the prurient interest in sex of minors;
(ii)is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii)taken as a whole, does not have serious value for minors.
(b)Serious value includes only serious literary, artistic, political or scientific value for minors.
Free speech advocates are wondering why exactly the state needs to implement a censorship regime to protect people from porn. “Parental filters already exist,” ACLU attorney Jason Groth told ABC News, “and every Utah parent can decide the level of access for their children.” In an open letter to Governor Spencer Cox, adult film star Cherie DeVille predicted the foreseeable slippery slope:
First, legislators would delete porn from phones. Next, they would target porn altogether. Down the line, they could urge the next governor to prevent phones from displaying search words like “Black Lives Matter” or “how to protest.”
Others have already fought Utah’s overbroad speech restrictions. In 2005, Utah passed a measure that criminalized the distribution of “material harmful to minors” without reasonably determining the person’s age and compelled the Utah Attorney General’s office to keep a registry of worldwide sites containing “material harmful to minors.” Booksellers and the ACLU filed a lawsuit claiming that the act violated First Amendment rights by implicitly blocking unrelated websites and making it impossible for ISPs to serve any “material harmful to minors” to adults. They argued that Utah’s forbidden speech includes works of literature, art, sex education, pop culture, and “a wide range of robust human discourse about current issues and personal matters that may include provocative or sexually-oriented language and images.” A judge ruled in 2012 that Utah could not enforce the law in regards to “generally accessible websites.”
The plan is still kind of a mess, as one Republican state senator who voted for the bill admitted. “And I think if we pass this bill, it sends a good message,” State Senator Jacob Anderegg said, according to the Salt Lake Tribune. “But we absolutely will be back here at some point in the future, maybe even in a special session to fix this.”
Presumably, Pornhub, which already carries a warning label in Utah, would be passcode-protected. But it’s unclear whether the software would have to blanket block entire websites like Reddit or ads or standalone social media posts or sexually charged text. Exceptions are made for people under 18 who are married, which adds another hurdle. According to the Tribune, Republican State Senator Todd Weiler said that the law’s built-in stall “gives us years, most likely, to iron out all of the problems, if there are problems.” So yeah, they didn’t bother to figure out how it’s going to work, but if other states have some ideas, they’ll run with that.
If and when they hammer out the details, the ACLU says that a courtroom is the likely next stop.