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DOJ Files Statement in FSC vs. Shurtleff

Utah [press release]- The U.S. Department of Justice filed a Statement of Interest in “Free Speech Coalition v. Shurtleff,” a case brought by a lobbying group for the pornography industry to overturn the Utah Child Protection Registry. The statement, written on behalf of the United States, unequivocally supports the State of Utah and its right to implement a Child Protection Registry law.

The United States writes: “With this statement, the United States seeks to ensure that the preemption provision in the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (‘the CAN-SPAM Act’) is interpreted correctly so as to provide due regard for the traditional police power of the states, without depriving the preemption provision of its intended effect. Contrary to plaintiff’s position, the CAN-SPAM Act does not preempt the Utah Child Protection Registry Act.”

The United States also refutes the pornography industry’s claim that the Utah Child Protection Registry violates the First Amendment: “This claim, if successful, would unjustifiably favor the dubious ‘right’ to send unsolicited sexually-oriented material directly and indiscriminately to personal e-mail addresses, heedless of whether they belong to adults or children, and regardless of the expressed wishes of the owner of the addresses, over (1) the fundamental right of individuals to decline to receive unwanted material (sexually-oriented and otherwise) and (2) the right of parents to direct the rearing of their children — a right that the Supreme Court has recognized to be ‘basic in the structure of our society.'”

The United States concludes its 21-page legal argument: “It is a virtue of our federal system that states can, in Justice Brandeis’ words, provide the ‘laboratories’ for experiments that the federal government is not prepared to implement on a national basis. … The protection of the fundamental right of parents to protect their children from harmful sexually-oriented material is indisputably a worthy goal. At this preliminary stage, [the Free Speech Coalition] has not provided the Court with any basis for its request that the Court halt Utah’s experiment in its tracks.”

The Utah Child Protection Registry was enacted by the Utah legislature in March of 2004. The law went into effect in July of 2005. The law allows e-mail addresses, mobile phone numbers, instant messenger IDs, and fax numbers that may be accessible to children to be registered for free with the State of Utah. Once registered, the addresses become off-limits to solicitations for adult-oriented materials. To date, more than 170,000 electronic addresses have been protected under the law. More information about Utah’s law may be found online. The State of Michigan maintains a similar program which has not been challenged.

The pornography industry filed suit in November of 2005 against both those officials in the State of Utah charged with enforcing the law, and also Unspam Registry Services, Inc., the Park City, Utah-based company that administers the laws on behalf of both Utah and Michigan. “The Department of Justice has clarified the CAN-SPAM Act and effectively closed the potential legal loophole pornographers were trying to use in order justify sending adult-oriented material to Utah’s children,” said Matthew Prince, CEO of Unspam Registry Services, Inc. “The United States has affirmed that even in the age of the Internet, states have the right to help parents keep unwanted material out of their homes.” The case is currently pending before Judge Dale Kimball in U.S. District Court.

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