Free Speech Coalition, Inc. v. Anderson.
No. 23-4104. 10/1/2024. D.Utah. Judge Moritz. Eleventh Amendment Immunity—Ex Parte Young Exception—Connection With Challenged Statute’s Enforcement—First Amendment—Fourteenth Amendment.
October 1, 2024
Utah recently enacted the Online Pornography Viewing Age Requirements (the Act), which allows private parties to sue commercial entities that provide certain restricted content without first verifying that a user is at least 18 years old. Free Speech Coalition, Inc., Dawson, John Doe, Deep Connection Technologies, Inc., Pfeuffer, and JFF Publications, LLC (collectively, plaintiffs) sought a declaration that the Act is unconstitutional because it violates their First Amendment free-speech rights and their Fourteenth Amendment due process and equal protection rights. Plaintiffs also requested preliminary and permanent injunctive relief preventing the Utah Department of Public Safety Commissioner (commissioner) and the Utah Attorney General (collectively, defendants) from enforcing the Act. Plaintiffs maintained that the attorney general enforces the Act through his general legal authority in the state and that the commissioner enforces the Act by overseeing a department that manages Utah’s Mobile Driver’s License program (mDL program), which provides an official copy of an individual’s driver’s license or identification card to their mobile device and thus could provide one way of verifying a user’s age. Defendants moved to dismiss based on Eleventh Amendment immunity. Plaintiffs argued that the exception to such immunity in Ex parte Young, 209 U.S. 123 (1908), applied. The district court concluded that neither defendant enforced or gave effect to the allegedly unconstitutional Act for purposes of the Ex parte Young exception. The court granted the motion and dismissed plaintiffs’ complaint for lack of subject matter jurisdiction.
On appeal, plaintiffs argued that the district court erred in not applying the Ex parte Young exception because the commissioner is sufficiently connected to the Act, given his oversight of the mDL program. Ex parte Young created an exception to Eleventh Amendment immunity under which individuals can sue state officers in their official capacities if the lawsuit seeks prospective relief for an ongoing violation of federal law. The exception applies if the state official has some connection with the challenged statute’s enforcement. Here, the commissioner has no duty under the Act because it does not refer to the mDL program or provide for a state-sponsored means of age verification. And the mDL program does not currently provide for online age verification, so it could not give effect to the Act. Accordingly, plaintiffs failed to show that the Ex parte Young exception applies to the Commissioner, and the Commissioner is entitled to sovereign immunity.
Plaintiffs also contended that the district court erred in not applying the Ex parte Young exception because the attorney general’s blanket authority over state law provides the requisite connection to the Act. And even if the attorney general is not required to enforce the Act by his general legal duties, he is a proper defendant under Ex parte Young because Utah law requires him to give his written opinion to state officers, boards, and commissions, so the attorney general could direct the Commissioner to administer the mDL program in ways that would mitigate the Act’s alleged constitutional harms. However, the Act expressly gives enforcement authority to private citizens, so the attorney general’s generic duty to enforce state laws is insufficient to invoke Ex parte Young; and as stated above, the Commissioner does not give effect to the Act. Further, the Tenth Circuit has explicitly held that Ex parte Young requires something in addition to simply a general duty to enforce the law. Therefore, the Ex parte Young exception does not apply, and the attorney general is entitled to Eleventh Amendment immunity.
The order dismissing the complaint was affirmed.