Utah Legislature Wraps Up Session By Passing Two Unconstitutional Internet Bills
from the nice-work,-everyone dept
Last week we wrote about the many, many, many constitutional problems with a bill proposed in Utah to try to tell internet companies how they can moderate content. As we noted, the bill clearly violates the 1st Amendment, the Commerce Clause, and is also pre-empted by Section 230.
The Salt Lake Tribune report has a stunning set of paragraphs that demonstrate that supporters of the bill not only ignored many, many experts telling them the constitutional problems with the bill, but they then pretended no one notified them of those concerns (this is blatantly false):
“What we are talking about here are large, private forums that are free to moderate themselves and to put up what they want to put up and censor and kick off those people they choose to,” added House Minority Leader Brian King, D-Salt Lake City. “If we pass this bill, the Utah taxpayers are going to pay large amounts of money to defend the constitutionality of this bill against a lot of large entities that have many resources.”
Brammer shot back that he was not made aware of any constitutional issues with the legislation. However, a legal analysis from the Office of Legislative Research and General Counsel shared with The Salt Lake Tribune raises several potential constitutional and legal problems.
Legislative attorneys advised that HB228 may violate the First Amendment by compelling speech through requiring these companies to provide information about their moderation practices, although that may not be an impermissible burden given their vast resources.
The memo also warns the bill could violate the Constitution by placing an “undue burden on interstate commerce.”
Finally, the legislation might be unenforceable because of provisions in the federal Communications Decency Act.
It's one thing to ignore me -- I'm just a loud mouth blogger. But to flat out ignore the points raised by legislative attorneys, making it clear that you're going to waste a ton of taxpayer money? That's just obnoxious. Rep. Brady Brammer should be ashamed.
And that wasn't the only unconstitutional tech-related bill the Utah legislature passed as it wrapped up its session. It also passed a porn filter bill that would mandate a porn filter on any phone, computer, tablet or other electronic device.
Just like the many, many, many other attempts at such bills, this one is also blatantly unconstitutional. In the key case that made all of the Communications Decency Act (minus Section 230) unconstitutional, Reno v. ACLU, the Supreme Court (with a 9-0 vote) made it quite clear that governments cannot mandate the blocking of pornographic material online. In that case, the Supreme Court went through many reasons why governments don't get to mandate filters for indecent content.
Utah's legislators haven't even attempted to address any of those concerns. Incredibly, the Salt Lake Tribune quotes even those who voted for the bill as saying that the bill has serious problems and will require follow up legislation to fix.
“As much as the intentions of this bill are good, logistically it just won’t work,” Anderegg, R-Lehi, said. “And I think if we pass this bill, it sends a good message. ... But we absolutely will be back here at some point in the future, maybe even in a special session to fix this.”
Anderegg ultimately voted in support of the bill, saying that while he has “a lot of trepidation” about the bill, he doesn’t “want to be the guy” who opposes an attempt to shield children from graphic content.
Incredible. Admitting you voted for a bill that you know won't work.. and saying you have to to protect the children, is quite an admission. The bill not only won't work, it's unconstitutional. And that's not the kind of thing you fix in a "special session." You just don't pass unconstitutional bills.
And if the goal is not to have children looking at porn, why not... let parents do their jobs and if they want to install a filter, let them do so. Remember "personal responsibility"?
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Filed Under: content moderation, filters, free speech, internet, porn, porn filters, social media, utah
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I see a line of cars coming into Nevada from Utah. Looks like they want to buy alcohol again. Oh....they brought their laptops with them this time.
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Because it’s not about saving the children — it’s about shaming the adults who watch porn, regardless of whether they have children.
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This sounds contradictory ...
...But I’m kinda glad that bills like these are being churned out by the local level. Not because they’re good legislation, oh no they’re godawful reactionary reactions that are born out of moral panic, but because they’re self-defeating. These anti-section 230 bills, succeed or no, would only provide us examples whenever a dumbass like Brammer would bring up something that should fit section 230.
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Re: This sounds contradictory ...
Section 230 was born out of things like this.
They don’t get it becuase the fee fees won’t let them
They are essentially running into a wall with no helmet.
Like all people in congress do.
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Think about the children
You know, it's not "child labor" if you don't pay them...
Which is absolutely stupid... but so is the stance of some of these politicians...
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Re: Think about the children
"it's not "child labor" if you don't pay them"
That would be child slavery.
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Utah's lawyers wish to thank state legislature ahead of time for your upcoming patronage of our legal services. $$$$
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I understand his choice, though I don't agree with it. Let's say he did vote against it, and when asked, gave a valid reason for voting against it, like the fact that it's unconstitutional. You just know that when election time rolls around, someone gunning for his seat will pull this vote out of context and say "Anderegg DOESN'T CARE ABOUT YOUR CHILDREN!" or "He wants to allow your kids to see porn!" etc.
Such is the state of politics.
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Re:
He could always shoot back that the bill had nothing to do with 'protecting the children', and those in favor of the bill were trying to cost the taxpayers millions over nothing but grandstanding, but that aside any such attacks would be based upon strawmen and lies, which while damning and potentially costing him election would have left him having been honest and trying to serve the public, even if it cost him.
As it is he just made clear that he'll fold any time pressure is applied and that he cares more about his own well being than the public's, showing him to be utterly unfit for the job.
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Re: Re:
<insert laughing J. Jonah Jameson meme here>
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Re: Re:
"He could always shoot back that the bill had nothing to do with 'protecting the children', and those in favor of the bill were trying to cost the taxpayers millions over nothing but grandstanding..."
He could, but that's not how shit goes down in politics. At least it's not the way shit goes down in US politics, where negative partisanship is the norm now.
Let's face it, if a politician, instead of presenting themselves as a better choice can just sling thousands of versions of imagined offenses at the opposition to make them seem the worse choice for the same amount of effort, then why even try to hold themselves up? It's just easier by far to come up with a dozen plausible yet untrue allegations which cost no more effort than saying them out loud than actually present a credible positive about yourself which you then have to work to uphold.
That's why US politicians, and above all the GOP, are resorting to whataboutism as their primary platform. They can't fix their own image so instead try to make the other guy look worse.
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Hmmm. I'm afraid you are starting in the wrong place then. If you really want to start 'shielding children from graphic content' you better ban breastfeeding. I mean "WOW' that's pretty graphic. And it's not just visual either. Also better ban natural birthing. That's just a horrible thing to inflict on a child.
/s
On a more serious note: I think inundating children with that sort of content isn't good, but pretending the world is fundamentally different than it is will actually hurt the child. Humans are sexual creatures, and embarrassing, and uncomfortable as it is to admit.
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Re:
Why on earth is it embarrassing and uncomfortable to admin that humans are sexual creatures? Without sexual attraction and stimulation, none of these mouth-breathing ignoramuses would even be here.
Hmm, perhaps there's an argument for stopping sexual reproduction after all?
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Re: Re:
Many people do not view themselves as animals, they see themselves as being "above" all animals and they attempt (rather poorly) to control their animalistic behaviors while rejecting any claims about human nature that goes against their predetermined biases.
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Lies, cowardice and corruption, ah politics
Brammer shot back that he was not made aware of any constitutional issues with the legislation.
Given what immediately follows that in the source article either he's lying through his teeth and knew damn well that there were constitutional problems with the bill, or he's telling the truth because he never actually bothered to ask the department specifically designed to look into legal/constitutional issues and ignored any messages they tried to send him. Not a good look either way, and speaking of not a good look...
“As much as the intentions of this bill are good, logistically it just won’t work,” Anderegg, R-Lehi, said. “And I think if we pass this bill, it sends a good message. ... But we absolutely will be back here at some point in the future, maybe even in a special session to fix this.”
Anderegg ultimately voted in support of the bill, saying that while he has “a lot of trepidation” about the bill, he doesn’t “want to be the guy” who opposes an attempt to shield children from graphic content.
... gutless cowardice like that has no business in politics, and neither does he. The only message sent is that the politicians involved don't give a damn about the constitutions, and are perfectly willing to spend millions of taxpayer dollars on legal challenges because they're either too cowardly to refuse to stand up to grandstanding, or indifferent to the fact that what they're trying to do has already been ruled unconstitutional.
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Re: Lies, cowardice and corruption, ah politics
Brammer shot back that he was not made aware of any constitutional issues with the legislation.
My question would be, "How in the hell could you and other legislators not be able to tell for yourselves?"
It's rhetorical, as the answer is that all of it is disingenuous AF. As with so many other things, we just keep pushing and pushing until unConstitutional becomes the accepted norm.
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lets see.
Child labor:
Know why it was restricted in the 1920's(?), because WE needed more jobs, and taking the kids out meant that adults could have jobs.
Then again recently they took more Teen jobs away, at the farm levels. Used to be at age 12 you could work on the farms. Now its 16.
How this improved the number of jobs in this country? There are to many reasons, that there Arnt Tons of jobs. Most of them are capitalistic.
The funny part is the controls that the states TRY, that worsen Who/where jobs can be had. You can Not have a business Inside most homes anymore, If you have customers To the home. Door to Door sales are almost All illegal. The costs of Commercial property, the Costs of everything to create a Business, is Huge.
Then let ask a Strange question, and Answer it also.
WHY NOT Tall all the services they are required to LEAVE UP ALL POSTS?
That list is going to be short, and All of you know Whats going to happen.
Spam from hell, from every source possible. Real and Faked adverts.
Then we get the Illegal posts of Music, movies, and just about everything else that can be Sued over.
Then we get those with idea, and expression that Needs to be held back abit, mostly because of the way its Written, then any logic to it.
As to the first part of this post, Jobs.
There is a hidden number the gov. does NOT want anyone to know. How many jobs ARE there in the USA. They figured something out long ago, and its to tell us a Lie about the employment numbers. Its a restricted counting. And the Totals are 2-10 times higher. But lets ask abit of logic FIRST. IF a single person could have a family and that 1 person work.
A family of 3, would create 100 million jobs in the nation. 1 person feeding 3 as well as all the Rents, food, insurance and expenses.
A Family of 4, would be about 75 million jobs. and all the expenses. So that 1 persons wages would cover 4, and a dog/cat/squirrel.
If 2 people in a family need to work it really messes things up abit. And there are allot of things that can mess this concept up. But Now that you have some Basic numbers, when they say there is a 5% unemployment Problem, thats 4-5 million people, and then the lie part, Those counted arnt All of them.
There was a solution, and it worked for a long time. But some people didnt like the idea of the Gov. having so many workers DOING THINGS, like food inspection.
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Re: lets see.
Note first, "ECA", IF you are merely an insane human, that I don't expect a reply, and this first sentence is all that's cogent in your ramble. Sheesh. At least you've dropped the runs of periods.
Anyhoo, SO you're FOR child labor, eh? Putting children to work to earn their keep? How young would you allow to work? Want to return to kids working in coal mines? And sweatshops? Truck farms? What about education? The poor don't need it, or WHAT is your view?
Seems another loony ultra-libertarian like Ron Paul, wanting to roll back progress and take away modern childhood. Sheesh.
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When did you stop beating your wife?
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“And I think if we pass this bill, it sends a good message. ... "
If "fuck the Constitution and fuck taxpayers" is a good message in Utah, what's a great one? "Immolate the orphans"?
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Back to the future…
Is it 1994 again? Are we listening to CDs, watching a fantastic Simpsons episode on Television, and making sure copyright is fucked for the next twenty years (not to mention the destruction of a whole generation of film) thanks to the impending death of Sonny Bono and the 20-year retroactive term © extension named for him?
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Re: Back to the future…
Well, the Satanic panic is back and Space Jam is about to be released. So yeah, I'd say it's the 90s again.
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Re: Re: Back to the future…
Tiem to take into overtime.
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This would basically put the US Congress and all state legislatures out of business.
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Good - let the people of Utah pay to defend political grandstanding by idiot politicians. If their opponents would make an issue out of how much it cost the people of Utah to defend something is likely dead on arrival in court, maybe this would happen less often. Once people reach the point of what they are willing to pay they will have to decide what they are willing to pay for.
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"a bill proposed in Utah to try to tell internet companies how they can moderate content"
Overlooking the unconstitutionality of this for a sec, how do they think this would work on an Internet that spans the globe? Everyone is just going to fall in line?
Are they going to erect the Great Firewall of Utah? Are they going to start making demands of websites located in foreign lands and demand the military enforce their Utah laws?
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Re:
Just like the US congress seem to believe they have authority over the planet, the government of Utah seems to believe they have authority over the union of states?
(Side thought: when people talk of the 'union', what do they think about Puerto Rico, Washington DC, or Guam? Special cases? Loop-holes? Or inconvenient irrelevancies?)
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Re: Re:
I am beginning to think that some state legislators have decided that they will turn their congress into some sort of political forum where they get to display their unmoderated opinions and bias like it was some sort of party line owned and operated facebook/twitter.
It's not just moderation on the internet either, there are many bills in state legislation with disenfranchisement of the opposing party as the goal.
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Re: Re:
Most of the time they don't.
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So, fun fact about the social media moderation bill. "Social media corporations" are companies that have over 20 million "account holders". "Account holders" are Utah residents with an account. There are *checks Wikipedia* 3.2 million residents of Utah.
There are no social media corporations.
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Re:
That’s a pretty massive oversight. It may also save the state from wasting money defending the bill since it wouldn’t actually do anything.
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This reminds me of the whole corporate sovereignty fiasco a couple of years ago...well, ongoing, but especially reported on a few years ago.
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Wait, that’s your problem? That it’s practically unworkable?
…Actually, I can agree with that. Mandating porn filters for all devices is, indeed, unworkable. In fact, it’s technically impossible to do that. There isn’t really a way to block, a lot of pornographic apps and programs through an automated filter, and a manual filter would be just impossible. And it’d be pretty stupid to mandate that such a thing implement its own internal filter given that it’s sole purpose is to provide pornographic content. No amount of “fixes” will make it logistically work.
However, it’s also fundamentally unconstitutional to mandate porn filters at all. Again, no amount of changes can fix that. You can have all the special sessions to fix it you want; the fact is that you simply cannot mandate porn filters. Period. And even if you could, history has shown that porn filters simply don’t work at all. Kids have no trouble disabling them, they have tons of false positives, and they have tons of false negatives.
I can appreciate wanting parents to have tools to help protect young children from adult content. I personally think it’s not worth worrying about, but fine. Still, a legal mandate is not the way to go.
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Re:
I can appreciate wanting parents to have tools to help protect young children from adult content. I personally think it’s not worth worrying about, but fine. Still, a legal mandate is not the way to go.
if they really feel like slamming their heads against that particular wall without engaging in blatant constitutional violations there are a number of methods they could have gone with, like providing parents with educational material to help them talk to their kids about porn and how it'll cause your palms to self-combust or whatever, tips on how to limit access by not giving your kids phones with screens that can play vids and sticking with more basic models, reminding them that there are these things called 'age ratings' on stuff like games and movies that they can check before buying them for their kids...
As all of these would require parents to actually act like parents and take personal responsibility rather than just blaming a third-party however I imagine any such suggestions would be DOA, hence why they weren't adopted.
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Re: Re:
I see what you did there.... you made the case for a new meme: PINO
Congratulations!
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Re: Re: Re:
PINO?
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Re: Re: Re: Re:
From the meme RINO - Republicans In Name Only, we now have Parents In Name Only.
Your expository does more to define this term than anything I could add to the discussion, so I'll sit down now.
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Re: Re: Re: Re: Re:
Ah, I'd heard of RINO before but it had been a while so I didn't make the connection, that makes sense now.
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This sounds like another one of those times lawmakers and attorneys forget that startups and small businesses exist. Can Facebook, Twitter, or Google comply with these requirements? Possibly. But what about the little guys and the newbies?
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Re:
Certainly, it's called geo-blocking.
Next up, watch for Utah to make illegal any and all VPN usage in their state. Fun and games, to be sure.
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Re: Re:
He said possibly.
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Section 230 will surely be found Unconstitutional too!
Just takes the right case with bit of skepticism and the evidence of the actuality that it's being used by corporations to stifle every "natural" person's 1A Rights, to implement a de facto end-run on 1A, and grant corporations the status of Royalty.
Besides, as you note, everyone but a few rabid corporatists HATES it.
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Re:
You and your lover Jhon Smith predicted that would happen last year. Same for the Mexican border wall and the arrest of Hilary Clinton.
How'd those turn out again?
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How can Donald Trump still issue press releases and do media interviews if his being banned from a bunch of privately owned services he doesn’t own has 100% stifled his ability to speak in any way whatsoever?
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Re: Section 230 will surely be found Unconstitutional too!
That ignores, of course, the insurmountable hurdle of the nonexistence of such a thing, much less evidence thereof.
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Re: Section 230 will surely be found Unconstitutional too!
" every "natural" person's 1A Rights"
What would be an unnatural person?
How does a corporation violate a person's right to free speech as defined in the US constitution Bill of Rights?
"de facto end-run on 1A, and grant corporations the status of Royalty."
Explain how this scenario you present is an end-run on the bill of rights.
I thought it was the GOP/trumpists that were demanding to be treated as royalty. I fully expected donald to have a carriage built for his use because the queen of england did not let him ride in her carriage. They really do think of themselves as being better than everyone else.
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A corporation.
You’ll have to forgive Brainy Smurf up there; he’s one of those sovereign citizen (“SovCit”) types who thinks driving and travelling are two different things and there’s a difference between “the person” and “the individual” in re: his legal name/identity.
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Re:
"A corporation."
Ahhh - good answer. I had forgot about that.
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Re: Re: Section 230 will surely be found Unconstitutional too!
Woody's sockpuppets pretending to be other people.
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Re: Section 230 will surely be found Unconstitutional too!
No one cares about your right be heard man.
That’s why you got banned.
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Re: Section 230 will surely be found Unconstitutional too!
The 1A right to free speech doesn’t include the right to be heard by anyone in particular or a particular number of people, nor does it include the right to say whatever you want on someone else’s privately owned property—even if it’s open to the public—without consequences from the owner of that property, including but not limited to being kicked off of it. In fact, the 1A doesn’t anyone at all from doing anything unless they’re the government, part of the government, or acting on behalf of the government (outside of certain contracts, but that’s another story). It does include a right not to speak or be forced to host someone else’s speech on your privately owned property. The 1A also includes a right for persons—natural or otherwise—to be or not be associated with other persons if they don’t want to.
In other words, it is literally impossible for a corporation to stifle anyone’s 1A right to free speech (outside of NDA-type clauses in contracts), and trying to force them to host speech infringes on their 1A rights. But even if corporations didn’t have 1A rights, that still doesn’t mean that the 1A is being run around. Seriously, this is exactly how the 1A is supposed to work.
And as for “the evidence of the actuality”, the courts have not ruled as it has on such things out of ignorance of what corporations have been doing. They were assuming for the sake of argument that corporations were doing exactly what they’ve been accused of. These were rulings about what the law says, not what it ought to be. Your assumption is that, if they only knew what you did, they would overturn all that legal precedent and agree with you. That’s not how it works at all. Even if the corporations were doing exactly what you say, that wouldn’t change the court rulings one iota.
Also, even if you were right, how would that give corporations royalty status? And I don’t think you understand what skepticism means.
Uh, no, that’s not what they said. It’s mostly politicians, ignorant people, and whiny bigots who hate it.
It’s also important to note that the haters are extremely divided on why they hate it, and the reasons are irreconcilable. Anti-230 liberals hate that corporations are protected from liability for others’ speech on their platform and that they can’t be forced to remove certain undeserable content (generally); they want to force corporations to do more moderation. Anti-230 conservatives hate that corporations are allowed to moderate whatever and whoever they want however, whenever, and whyever they want to (generally); they want corporations to moderate less. These two positions are irreconcilable, and they’re fairly evenly divided. In turn, each side is unable to consistently agree among themselves what content, exactly, is okay to/must be moderated, what content is okay to/must be moderated, what tools a corporation can use to moderate, or whether §230 should be repealed, replaced, or reformed.
On top of that, they all operate from a misunderstanding of the 1A and how the internet actually works.
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Move the porn to Utah.
They won’t be a able to withstand the horde.
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Re:
Well, Mormon Girls is a genre of porn....
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Re:
One does not simply move the porn into the Morridor.
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