A Utah Republican is trying to get a federal bill passed that would kill efforts by marketers and others to overturn the state’s so-called child protection do-not e-mail registry.
Utah Republican Chris Cannon has introduced legislation into the U.S. House of Representatives that would limit the ability of federal courts to reverse state court decisions on pornography.
If passed, the bill would end a lawsuit against Utah by pornography trade group the Free Speech Coalition. The porn group contends a law enacted by Utah last year establishing a kids’ no-e-mail registry unconstitutionally interferes with interstate commerce and is preempted by the federal Can Spam Act.
Most marketers who use e-mail are quietly hoping the porn group wins.
Under the law, marketers who want to send anything it is illegal to view or buy in e-mail are supposed to scrub their e-mail lists against Utah’s registry once a month for $5 per thousand addresses checked and remove addresses on the registry from their lists. A similar law is in effect in Michigan. Both states have severe penalties for marketers who send e-mail inappropriate for children to addresses on the registries.
The Email Sender and Provider Coalition, along with three national advertising trade groups and two civil liberties groups filed friend-of-the-court briefs in late June in support of the porn group’s lawsuit against Utah.
Cannon’s bill would stop the effort in its tracks.
Dubbed H.R. 5528, the bill states: “No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide a question of whether a State pornography law imposes a constitutionally invalid restriction on the freedom of expression.”
Cannon positioned the bill as giving power back to the states.
“It is not the job of the courts to legislate,” he said in a statement. “My legislation puts the power to protect families back in the hands of the states, where it rightfully belongs. If there are those who believe a state’s anti-pornography laws are too strict, they can find another state in which to live.”
However, marketers and other critics aren’t arguing that Utah’s pornography laws are too strict. They’re arguing that Utah’s child-protection, no-e-mail law has an unconstitutionally chilling effect outside the state’s borders. Marketers also argue the law puts an unfair burden on law-abiding companies while doing nothing to protect children from pornography, and possibly even putting them at greater risk of being contacted by online predators.
The Federal Trade Commission has made multiple statements against do-not-e-mail registries for the same reasons.
“Cannon’s comments show a misunderstanding of the application of Utah’s registry in the marketplace,” said Trevor Hughes, executive director of the E-mail Sender and Provider Coalition. Given the ramifications of Utah’s registry outside its borders, Hughes said, “where interstate commerce is implicated, where issues of national flows of data and national commercial transactions are implicated, most certainly the U.S. constitution should control.”
Hughes added: “It is notable that the only enforcement action under the Utah child protection registry has been an effort on the part of the state to go after an offshore [non-U.S.] company.”
In January, the Utah Division of Consumer Protection issued its first $2,500 citation under Utah’s child protection registry law to Canadian online pornography site HoneyI[blanked]TheBabySitter.com.
Utah has yet to collect on that fine.
A Utah Republican is trying to get a federal bill passed that would kill efforts by marketers and others to overturn the state’s so-called child protection do-not e-mail registry.
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