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SALT LAKE CITY — Booksellers, artists and Internet content providers who sued Utah over its anti-pornography law are no longer subject to it, state attorneys said Thursday.
"With these plaintiffs, we don't see a basis to prosecute any of them," assistant attorney general Mark Burns told U.S. District Judge Dee Benson.
But their lawyers aren't convinced that the state wouldn't go after them.
“The defendants are essentially asking us to trust them not to prosecute people who post words and images on websites because their current view is that the law does not apply to Internet speech," said Richard Zuckerman, a New York attorney representing the plaintiffs. "Of course, their opinion could change at any time in the future, and such assurances do not make the statute constitutional."
The Dealing in Material Harmful to a Minor Act makes it illegal for a person to show or give a minor anything that contains nudity or sexual conduct that:
- For minors, when taken as a whole, appeals to a prurient interest in sex;
- Is patently offensive according to prevailing standards in the adult community with respect as to what is suitable material for minors; and
- Does not have serious value for minors.
Source: Utah Attorney General's Office
Artist Nathan Florence, the ACLU of Utah, Sam Weller's Bookstore and the King's English were among the individuals and organizations that sued the state after the Utah Legislature passed the Harmful to Minors Act in 2005. The two bookstores have since dropped out of the lawsuit.
The law required Internet service providers, Web hosts and content providers to limit the ability of minors to access pornography.
"The Legislature has backed off that," said assistant attorney general Jerrold Jensen. The law, he said, had problems but subsequent amendments state lawmakers made render it moot for those who filed the lawsuit.
Internet content providers would have to know who's viewing the material to be subject to prosecution Jensen said. "Let's be practical," he said. "That doesn't happen."
Regardless the lawsuit's outcome, Jensen said the state wants the law to allow the Internet Crimes Against Children unit to continue its work.
"Are there predators out there who think they're dealing with a 13-year-old girl? There are. It's designed to get 'em," he said. "We don't believe we can police the whole world. But we can police individual predators."
Zuckerman said the state may properly restrict one-to-one "harmful to minors" communications to specific children, but the law goes beyond that.
"We do not agree with the defendants that the changes in the law after 2005 save this statute,” he said.
It's unconstitutional to require Internet content providers to tag or rate material that might be harmful to minors, Zuckerman said. That responsibility lies with parents who can buy software to block "dirty words" or other things, he said.
Despite their differences, lawyers on both sides reached some common ground during Thursday's hearing, prompting Benson to say, "Why don't we just get this thing settled?"
The judge envisioned a court order saying the eight remaining plaintiffs would not be subject to the law.
"The problem with that is it does leave others at risk," Zuckerman said, maintaining his stance that the law is unconstitutional.
Benson gave the parties 30 days to work out an agreement.