Utah District Court Rejects Advertisers' Arguments in Child Registry Case

In 2004, Utah enacted a law establishing a registry where parents can register "contact points", including e-mail addresses, accessible by children. Once these contact points are registered, marketers of "adult-oriented" products are prohibited by the law from contacting those addresses. The Free Speech Coalition (FSC), a coalition representing the adult entertainment industry, brought suit in federal court seeking an injunction against enforcement of the Act.

In our view, the law imposes significant burdens and financial costs on all marketers from around the country who utilize email to advertise otherwise lawful products and services to adults in Utah and to persons in other states. It is also impermissibly vague. The law completely fails to answer questions such as whether it applies only to products and services that can never be lawfully purchased by a minor, such as alcohol or tobacco products, or if it also applies to products such as cars or credit cards, which can be obtained with parental consent. Thus, ANA, along with a number of other associations, filed a "friend-of-the-court" brief in the case to explain to the court the effects the law would have on a broad range of marketers and marketing practices in addition to those represented by the FSC.

Unfortunately, the court on March 23rd denied the motion for preliminary injunction on the grounds that the Free Speech Coalition did not prove by a substantial likelihood that it would prevail on the merits. Specifically, it claimed that: 1) the law was not preempted by CAN-SPAM because the law reserved to the state the right to prohibit computer crimes; 2) it did not violate interstate commerce because Congress granted the states the authority to regulate email; and 3) the First Amendment was not implicated because the government has a substantial interest in protecting minors from harmful speech and protecting the privacy of the home, and the law was narrowly tailored since parents had to opt-in to stop receiving emails.

It also dismissed the arguments made in our brief about the impact the registry would have on products that our members market that children are legally prohibited from buying, alleging that our concerns were not the same as those of the Free Speech Coalition.

The case has now moved into the discovery phase for a hearing on the merits. We are considering our next steps in the case.

If you have any questions or suggestions, please contact Dan Jaffe in ANA's Washington office at 202-296-2359 or at djaffe@ana.net.