By Making Its Porn Age Verification Law A ‘Bounty’ Law, Utah Able To Deflect Challenge To The Law’s Validity

Over the last few years, as we’ve seen state legislatures and governors focusing on culture war legislating, rather than sensible policy legislating, one thing that’s become popular — kicked off by Texas’s anti-abortion law, but gladly embraced by Democrats as well — is the idea of trying to avoid judicial scrutiny by taking enforcement out of the government’s hands, but creating a “bounty” program with a private right of action.

Basically, unlike most laws, rather than saying that a state Attorney General or local prosecutor can take a violator to court, the laws give that right to citizens, and offer them a “reward” if they successfully do so. We’ve had some laws like this before, and historically it’s always resulted in problematic situations driven by warped incentives. Even when the underlying laws may sound sensible, giving anyone who takes anyone else to court the ability to profit from it leads to widespread abuse. We’ve seen this, most notably, with the rise of ADA trolls over the last few years.

But, these bounty laws not only create warped incentives and flood the courthouse with vexatious litigation, but they also make it harder to invalidate those laws. This is by design. Normally when a bad law is passed, if someone is trying to invalidate the law as unconstitutional, they file a “pre-enforcement action,” usually against the state Attorney General (or sometimes governor, depending on the details of the law), to enjoin them from ever enforcing the law.

This is compared to waiting until there’s an attempt to enforce the law, at which point you could also challenge the law. But for laws that by their very existence create chilling effects, or cause companies to massively change their behavior to avoid the risk of liability, a pre-enforcement challenge is super important.

But… some courts are saying you can’t really do that when the enforcement is not by the state, but by private citizens.

And, it appears that’s now what’s happened with Utah’s ridiculous adult content age verification law. Back in May, right after the law went into effect and right after the largest adult content website operator Mindgeek blocked all Utah IP addresses from all its websites, the Free Speech Coalition, a trade group representing the adult content industry (including Mindgeek), sued to get the law declared unconstitutional.

As noted when they filed the lawsuit, the arguments here are quite strong. The law clearly violates the 1st Amendment, among other things.

However, this week the court dismissed the lawsuit… but for exactly the reasons I discussed above regarding these ridiculous and dangerous bounty laws: since the Attorney General doesn’t enforce the law, but state-enabled vigilantes do, the Free Speech Coalition can’t sue the AG:

The Eleventh Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” “[T]he Eleventh Amendment has been interpreted to bar a suit by a citizen against the citizen’s own State in Federal Court.” It also extends to “suit[s] against a state official in his or her official capacity” because such suits are “no different from a suit against the State itself.” However, under the Ex parte Young exception to Eleventh Amendment immunity, a plaintiff may bring suit to prospectively enjoin state officials from violating federal law.

To invoke this exception, the named state official “must have some connection with the enforcement” of the challenged statute. Otherwise, the suit “is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” The named official is “not required to have a ‘special connection’ to the unconstitutional act or conduct. Rather, state officials must have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.”

Plaintiffs’ claims against the Utah Attorney General do not fall within the Ex parte Young exception to the Eleventh Amendment. As Plaintiffs’ Complaint acknowledges, “the Act creates a private right of action by which Utah residents—and not state actors—are empowered to do the State’s bidding.” Plaintiffs point to the Attorney General’s general duties to “prosecute or defend all causes to which the state or any officer, board, or commission of the state in an official capacity is a party, and take charge, as attorney, of all civil legal matters in which the state is interested” and to “give [their] opinion in writing and without fee.” However, the mere general duty to enforce the law is not sufficient to invoke Ex parte Young

So… basically, due to the way the law is written, the Free Speech Coalition can’t effectively bring a pre-enforcement challenge, and tons of speech gets stifled. This is, of course, done on purpose. The drafters of these laws (especially the first few), did this on purpose, knowing they’d get the benefit of chilled speech while making it way more difficult for those who actually understand the constitutional infirmities of these laws to actually get them tossed out.

In sum, Plaintiffs point only to the Attorney General’s generalized responsibilities to enforce the laws of the state and provide written opinions to the legislature. Such general enforcement powers are not sufficient to establish the connection needed to invoke the Ex parte Young exception to Eleventh Amendment immunity. Plaintiffs have failed to demonstrate that the Attorney General has a particular duty to enforce S.B. 287 or that he has demonstrated a willingness to exercise that duty. Therefore, Plaintiffs’ claims against the Utah Attorney General must be dismissed

The Free Speech Coalition had tried to get around these issues with other arguments, but they all failed. This is unfortunate. One argument was that being able to bring a pre-enforcement challenge would prevent a flood of potentially (likely) frivolous litigation brought by those seeking the bounty. But the court says “nope.”

Plaintiffs also suggest that “[r]elief from this Court would likewise redress Plaintiffs’ injuries by discouraging putative litigants from wasting time suing under a statute promising illusory awards of unrecoverable damages.” The Supreme Court rejected a similar argument in Whole Woman’s Health. There, the petitioners argued that enjoining the attorney general from enforcing a statute “would also automatically bind any private party who might try to bring . . . suit against them.” The Court noted that this theory suffered “from some obvious problems.” The Court explained that even “[s]upposing the attorney general did have some enforcement authority . . . , the petitioners have identified nothing that might allow a federal court to parlay that authority, or any defendant’s enforcement authority, into an injunction against any and all unnamed private persons who might seek to bring their own . . . suits.” Therefore, the potential to ward off future suits is not sufficient.

I’m assuming this decision will be appealed, but who knows. It’s possible that this challenge will now need to wait until someone actually tries to enforce it, which raises a lot of risks, as whoever is targeted may not be in the best position, or have the best strategy or lawyers for challenging the law.

And, of course, there’s all the damage done in the meantime to the companies trying to comply with a law as ridiculous as this, and to various Utah residents who are harmed by the impact of the law itself.

I understand the legal rationale for not allowing the lawsuit to be brought against government actors who are not the enforcers of the law, but this seems like a massive and problematic loophole that more and more states are going to use. So long as you create a system of enforcement that is just a public bounty, it basically wipes out the possibility of a pre-enforcement challenge?

That seems like a pretty massive loophole, and represents a problem at a time when lots of legislatures are passing obviously unconstitutional laws in pursuit of a culture war, where the government itself is passing off enforcement to the vigilante public.

It seems like there should be a simpler, more straightforward method of bringing a pre-enforcement challenge to these laws, even when there’s no direct state enforcement person to target as the defendant. The government gets to put things like cash on trial directly. Why shouldn’t the public get to just put these unconstitutional laws on trial?