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March 08, 2017

Utah Gov. Considers Bill Allowing Suits for 'Porn Damage'

SALT LAKE CITY—In what some see as an inevitable follow-up to Utah's declaration about a year ago that sexually explicit content (aka pornography) is a "public health crisis," both houses of Utah's legislature have now passed the Cause of Action for Minors Injured by Pornography Act, Senate Bill 185, which will allow a person—presumably a parent, but possibly an "affected" minor—to sue any publisher of an explicit magazine or DVD if that material "is the proximate cause for the person being harmed physically or psychologically, or by emotional or medical illnesses as a result of that pornographic material." The bill now goes to Gov. Gary Herbert, who is almost guaranteed to sign it into law. The bill was sponsored by the same legislator who created the "porn is a public health crisis" resolution, Rep. Todd Weiler (R-Woods Cross), and to say it's poorly written would be an understatement—but what's even more interesting is how easy it should be to avoid getting sued under it. For example, the bill's definition of "pornographic material" is essentially the definition for "obscenity" adopted by the U.S. Supreme Court in its Miller v. California decision: "material that: (a) the average person, applying contemporary community standards, finds that, taken as a whole, appeals to prurient interest in sex; (b) is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and (c) taken as a whole does not have serious literary, artistic, political, or scientific value." Of course, such a definition would likely turn any lawsuit brought under this bill into a de facto obscenity trial, with the material's producer required to convince a judge or jury that his/her product is not legally obscene, thus turning the concept of "innocent until proven guilty" on its head. Anyway, the law provides the basis upon which a lawsuit can be brought: "(1) A person who predominately distributes or otherwise predominately provides pornographic material to consumers is liable to a person if: (a) at the time the pornographic material is viewed by the person, the person is a minor; and (b) the pornographic material is the proximate cause for the person being harmed physically or psychologically, or by emotional or medical illnesses as a result of that pornographic material." This seems as if it'll be a windfall for the various "porn addiction" specialists that proliferate the conservative religious community, but there's no reason that a psychologist or psychiatrist who's sufficiently unethical and/or amoral couldn't get into the act somehow as well. As for being "physically harmed," it'll probably take more than a boy getting his dick rubbed raw from too much masturbating, or a girl having similar problems with her labia or vulva to allow a lawsuit based on that to survive a motion to dismiss. But what'll be very interesting is if the Utah courts allow testimony from self-described "experts" like Dr. Judith Reisman who created the word "erototoxin" to describe an imaginary compound that porn supposedly produces in the brain, or give any credence to the claim by FightTheNewDrug and other pro-censorship organizations that insist, "Just like other addictive substances, porn floods the brain with dopamine. That rush of brain chemicals happening over and over again rewires the brain’s reward pathway ultimately changing the make up of the viewer’s brain." But if that possibility sounds terrifying (and it should), first consider the sources for such material that are exempted from the law's reach: "If the conditions of Subsection (2) [the pornographic material definition] are met, this part does not apply to: (a) the following, as defined in the Communications Act of 1934, as amended: (i) an interactive computer service; (ii) a telecommunications service, information service, or mobile service, including a commercial mobile service; or (iii) a multichannel video programming distributor; (b) an Internet service provider; (c) a provider of an electronic communications service; (d) a distributor of Internet-based video services; (e) a host company as defined in Section 76-10-1230; or (f) a distributor of electronic or computerized game software that users manipulate through interactive devices." Translation: Any provider of "pornographic material" that the kid sees online on the internet, on a cellphone, on cable TV, an ISP-provided mail server or video service (like YouTube) or an online multi-player video game is exempt from a lawsuit under this Act. But wait: It gets even better! Under the section of the law titled "Liability—Safe Harbor" can be found the following: "(3) Notwithstanding Subsection (1) [the definition of "minor"], a person who distributes or otherwise provides pornographic material is not liable under this section if the person who distributes or otherwise provides pornographic material: (a) provides a warning that: (i) is conspicuous; (ii) appears before the pornographic material can be accessed; and (iii) consists of a good faith effort to warn persons accessing the pornographic material that the pornographic material may be harmful to minors; and (b) makes a good faith effort to verify the age of a person accessing the pornographic material." Translation: As long as the "pornographic material" is, for example, wrapped in opaque plastic (as many adult magazines including Penthouse currently are) and includes a nice big "may be harmful to minors" label (which, of course, is horseshit but whatthehell, eh?) on that overwrap, and is kept behind the counter in whatever store or at whatever newsstand sells it, the producer of the material should be safe from a lawsuit under the Act. Of course, that last part might be more difficult if the venue is an adult book—or video store—but we're not even sure if there are any of those in Utah. So perhaps the primary take-away from this Act, which was passed 50-8 by Utah's House and unanimously by its Senate, is that the legislature is desperate to appear to be doing something about Utah's "porn epidemic," considering how embarrassed the state's Mormon leadership was by the fact that in 2009, researcher Ben Edelman found that Utah had the highest percentage of porn site subscriptions per capita in the nation. But aside from the inevitable constitutional challenges that will occur the moment someone tries to sue an adult producer under this Act, it'll be interesting to see what Utah tries to do with this new legislation, and how it tries to build upon it (as this Act built upon the "public health crisis" resolution) to further target the adult industry. Pictured: Rep. Todd Weiler

 
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