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Porn warning label bill passes the Utah State Legislature and it could face a legal challenge

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Posted at 2:13 PM, Mar 10, 2020
and last updated 2020-03-10 16:14:49-04

SALT LAKE CITY — A bill that requires porn producers to put a warning label on their products has passed the Utah State Legislature.

House Bill 243, sponsored by Rep. Brady Brammer, R-Highland, now heads to Governor Gary Herbert's desk for his signature or veto. But the bill has been significantly modified from when it was first introduced.

The warning label itself has been changed to read: "Exposing minors to obscene material may damage or negatively impact minors." Any label on a video must last for 5 seconds, down from 15.

The legal standard it relies on has also changed from harmful to minors, to obscenity. That could affect what has to put a warning label on it.

"If they would be defined as obscenity. Just because they object to it, does not mean it is obscenity," Rep. Brammer said in an interview with FOX 13. "Obscenity is really the worst of the worst."

That could mean a lot of mainstream pornographic sites or publications could refuse to put the warning label on.

The Free Speech Coalition, a trade group representing the adult entertainment industry, said it still had concerns about the bill.

"Despite changes to the bill, HB243 remains a landmine of First Amendment issues. Affixing a state-mandated warning to an adult film, which enjoys First Amendment protections, is fundamentally different from doing the same to a food product, which does not," the group said in a statement. "The bill’s author, Rep. Brady Brammer, says that the labelling law will only apply to ‘obscene’ content. However, there is no established legal definition for obscenity — each case would have to be worked out through a lengthy and expensive legal process. However, the chilling effect on legal speech would be substantial."

The Utah Attorney General's Office could sue any porn publisher that refuses to comply, but Rep. Brammer envisioned it would require a citizen to sue. Potential penalties for non-compliance with the law, if it's signed by the governor, would be $2,500 per violation.

Rep. Brammer said he expected the bill would face a legal challenge.

"I would expect they’ll start by filing a lawsuit to prevent it from going into place and then we’ll see how the courts treat it. We’ve been hesitant to draw a line anywhere and it does challenge the courts to say, 'We’ll draw a line' and whether or not Utah is permitted to allow things to come into our state without warning and without any type of prohibition regardless of whether it is obscene content as not," he said.

The Free Speech Coalition did not commit to a lawsuit, but said prior attempts by Utah to regulate adult websites failed in a court challenge in 2012.

"FSC supports the limiting of adult content to adults. That’s why we’ve worked closely with adult content filters to register adult content, and why adult sites carry the Restricted to Adults Label, which allows them to be easily blocked. If Rep. Brammer wants to limit access of adult content by minors, consumer filters are a much more effective solution — and one that doesn’t trample First Amendment protections," the group said.