After being dismissed as plaintiffs last year from a lawsuit claiming the Utah Harmful to Minors Act will unfairly subject them to prosecution, a number of local bookstores and Internet providers are trying to get back on the case.
Attorneys for the King's English and Sam Weller's bookstores, along with RigidTech.com and IPNS of Utah, argued Monday in federal court that the law aimed at limiting the ability of minors to access pornography on the Internet could unfairly subject the businesses to lawsuits, despite the court's earlier ruling that such claims were unfounded.
The state's attorney, however, said the bookstores and Internet providers have had their day in court. A judge dismissed six of the 14 plaintiffs in November, leaving the American Civil Liberties Union and the Sexual Health Network and the Comic Book Legal Defense Fund, two out-of-state entities, as plaintiffs.
"We've been here before," said Assistant Utah Attorney General Jerrold S. Jensen. In a motion filed with the court, the state said the bookstores and Internet providers are not providing new information and are "attempting to get a second (or third) bite of the apple."
"Based on the evidence in front of me, these two would-be parties to a federal lawsuit are not at risk," U.S. District Judge Dee Benson said during Monday's hearing. "They haven't changed a thing (since the November decision)."
Benson will issue a written decision on the motion at a later date.
The act, passed in 2005 and later amended, would require Internet service providers and Web hosts to filter content and would require annual tests of their filtering systems, which would hurt small ISPs such as RigidTech, said attorney John Morris, of the Center for Democracy and Technology in Washington, D.C.
With obscenity standards varying, not only from state to state, but from community to community, the concern for King's English and Sam Weller's is that putting portions of books, including cover images, online where there is no way to know if a minor will view them might land the businesses in legal trouble, or cause a "chill" on their free speech.
"I believe these bookstores will self-censor," Morris said.Jensen, however, said neither bookstore has been prosecuted for dealing harmful material in the past. He believes the businesses would not be at risk of prosecution if they put their content online and should not be included in the current lawsuit.