The Volokh Conspiracy
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No Injunction Against Law That Authorizes Private Suits for Letting Minors Access Certain Online Materials
From Free Speech Coalition, Inc. v. Anderson, decided today by Judge Ted Stewart (D. Utah):
In 2023, the Utah legislature passed a bill—S.B. 287—requiring commercial entities that provide pornography and other materials defined as being harmful to minors to verify the age of individuals accessing that material. A commercial entity may be held liable if it "fails to perform reasonable age verification methods to verify the age of an individual attempting to access the material," and a commercial entity that is found to have violated the law "shall be liable to an individual for damages resulting from a minor's accessing the material, including court costs and reasonable attorney fees as ordered by the court."
S.B. 287 identifies three reasonable age verification methods. Relevant here is the use of a "digitized information card." The Act defines "digitized identification card" as
a data file available on any mobile device which has connectivity to the Internet through a state-approved application that allows the mobile device to download the data file from a state agency or an authorized agent of a state agency that contains all of the data elements visible on the face and back of a license or identification card and displays the current status of the license or identification card.
Plaintiffs contend that S.B. 287 is unconstitutional and seek an order "enjoining the Commissioner of Utah's Department of Public Safety from permitting its data files to be downloaded for use" in the age verification process "and the Attorney General from otherwise intervening to enforce the Act." …
The court concluded that such lawsuits against government officials—such as the Utah Attorney General and the Utah official in charge of issuing identification cards—are permissible only if those officials are involved in enforcing the law. When a law is enforced through civil lawsuits by private individuals (as is the case with, say, libel law, most workplace harassment and discrimination law, and many other areas of the law), preenforcement challenges aren't available unless some specific likely plaintiff can be identified. The court relied extensively on Whole Woman's Health v. Jackson (2021), which held largely the same about Texas's SB 8, which authorized private lawsuits against abortion providers; but other precedents had so held as well. The court concluded:
Plaintiffs … suggest that "[r]elief from this Court would … 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.
The Court acknowledges Plaintiffs' concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important constitutional questions. The wisdom of such policy decisions is best left to the other branches of government. It may be of little succor to Plaintiffs, but any commercial entity sued under S.B. 287 "may pursue state and federal constitutional arguments in his or her defense," they just cannot receive a pre-enforcement injunction against the two named Defendants.
Seems correct to me; as I wrote on the subject following the Court's Whole Woman's Health (SB 8) decision, federal law has never guaranteed a right to a pre-enforcement constitutional challenge to a law. In particular, when it comes to civil lawsuits (including ones that implicate constitutional rights, such as the Free Speech Clause, the Free Exercise Clause, the Second Amendment, and more), potential targets must often wait until they are sued and then raise the Constitution as a defense, rather than by suing up front.
Pre-enforcement challenges to governmental enforcement do happen, because one can seek an injunction against the enforcer. But when it comes to tort liability in which there could be a wide range of potential plaintiffs, such pre-enforcement challenges are usually unavailable, since there's no particular person one can sue up front. Again, constitutional rights can still be vindicated; they just have to be raised defensively in response to a lawsuit, rather than preemptively in the rightsholder's own lawsuit seeking an injunction.
We see this in many free speech cases, such as New York Times v. Sullivan and Snyder v. Phelps: When speakers feel chilled by unconstitutionally overbroad tort rules related to, say, libel (Sullivan), or intentional infliction of emotional distress (Snyder), or the right of publicity (an area that remains unresolved), they generally need to raise the defenses after they are sued—the New York Times, for instance, couldn't just sue the state of Alabama before Sullivan's lawsuit in federal court to try to get Alabama's libel law narrowed.
The same would apply to tort lawsuits against gun manufacturers, gun sellers, or gun owners as well; any Second Amendment defense, or for that matter any federal statutory defense under the Protection of Lawful Commerce in Arms Act would have to be raised as a defense, not as a pre-enforcement challenge against state court judges or clerks. To be sure, the very presence of such civil causes of action may create a "chilling effect"; but that has historically not been seen as enough to create a categorical entitlement to filing a pre-enforcement challenge to block the civil cause of action.
Here's the key passage from the Whole Woman's Health majority:
[M]any paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court [because the majority allowed a suit to be brought against state medical licensing officials -EV], everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense….
The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation's history. And pre-enforcement review under the statutory regime the petitioners invoke, 42 U. S. C. §1983, was not prominent until the mid-20th century. To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (2011) (First Amendment used as a defense to a state tort suit).
As our cases explain, the "chilling effect" associated with a potentially unconstitutional law being "'on the books'" is insufficient to "justify federal intervention" in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.
