Porn Warnings in Utah

 

When someone goes onto a website like Pornhub to view pornography, they usually know what they’re in for. Let’s be honest, most of the time the video titles can give a pretty good idea of what the viewer is about to watch. However, in Utah, they’re taking it a step further.

Now when someone goes to watch porn in the state of Utah, not only will they get the no-brainer video title, but they will also get a warning label to really drive the point home of what’s coming next, thanks to H.B. 243.

H.B. 243 just passed through Utah’s State Legislature on April 1, and it did so “without Governor Gary Herbert’s signature” (Porn warning labels bill becomes Utah law amid controversy).

The new law “allows the attorney general or a member of the public to bring an action against a person who distributes pornography without a visible warning or specific searchable text for a website” (HB 243).

The label must be a sentence long and it must warn the viewer about potential to harm minors. If porn producer’s don’t comply, they’ll face a “$2,500 penalty” (Porn warning labels bill becomes Utah law amid controversy).

Originally, the law was targeted toward all pornographic material, but was narrowed down to porn that is considered legally obscene after facing criticism that the measure could be seen as unconstitutional.

Considering that porn is protected by the First Amendment, this bill has faced backlash from the Porn industry. Mike Stabile, a representative with the Free Speech Coalition, an adult entertainment group, has made it clear that he finds this law to be a grotesque overstep on the First Amendment.

“The law may be narrowed, but the chilling effect on speech is huge — people not speaking or creating out of fear of prosecution,” Stable has said. (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

In order for porn to lose First Amendment protection, it has to fall under two categories: child pornography and obscenity (Pornography & Obscenity).

Unfortunately, the problem with obscenity is subjectivity. Anyone can decide what they consider to be obscene, especially under this new law.  Although this law only applies to “hardcore material” porn producers fear that this legislation has the potential to “unfairly force porn producers to defend themselves in court because it allows private citizens as well as the state to file complaints” (Porn warning labels bill becomes Utah law amid controversy).

The entire purpose of the bill is to protect children. Republican Representative Brady Brammer, a sponsor of the law, has said “the measure is aimed at helping people worried about the widespread availability of porn online and how easily children can find it.” (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

However, a judge would be the deciding factor in determining whether or not the porn qualifies as obscene. Ultimately, producers could avoid the penalty by “showing that they have included the label most of the time.”(HB 243) Unfortunately, this is where the problem of subjectivity comes into play.

For years U.S. Supreme Court Justices have struggled with pinpointing what is and isn’t obscene. It began in 1957 with Roth v. United states where it was ruled “in a 6-to-3 decision written by Justice William J. Brennan, Jr., that obscenity was not within the area of constitutionally protected speech or press.” (Roth v. United States)

Then in the 1964 decision for Jacobellis v. Ohio, Justice Potter Stewart could not even provide a definition, he just simply said, “But I know it when I see it, and the motion picture involved in this case is not that.” (Jacobellis v. Ohio)

To decide whether or not Jacobellis’s conviction should be reversed, the Supreme Court of Ohio looked to the obscenity test, which the court defined as “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” (Jacobellis v. Ohio)

Today, courts utilize the three-prong obscenity test, or the Miller test, which was developed in the case of Miller v. California. The test decides on obscenity by determining:

  • Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values (Miller v. California)

In Utah, deciding if material is considered pornographic is eerily similar to the obscenity test. According to the state’s criminal code, Utah does not require an expert witness to testify for or against the fact the material or performance is or is not harmful to adults or minors or is or is not pornographic.

Their test for deciding whether material is pornographic is as follows:

  • The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex.
  • It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and
  • Taken as a whole it does not have serious literary, artistic, political or scientific value. (76-10-1203. Pornographic material or performance)

While Brammer has expressed before the law passed that “he knows that it will most likely face a legal challenge,” (Pornography warning label bill clears House committee) no challenges have come thus far.

But this law does beg the question, what is considered obscene, and is protecting youth from porn more important than infringing on the First Amendment?

Sources

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/adult-entertainment/pornography-obscenity/

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://le.utah.gov/~2020/bills/hbillenr/HB0243.pdf

https://www.sltrib.com/news/2020/04/04/porn-warning-labels-bill/

https://www.sltrib.com/news/politics/2020/02/12/pornography-warning-label/

https://www.oyez.org/cases/1956/582

https://www.stgeorgeutah.com/news/archive/2020/03/10/apc-pornography-labeling-bill-passes-utah-legislature-but-could-face-first-amendment-legal-challenges/#.Xo_CbshKjIW

https://le.utah.gov/xcode/Title76/Chapter10/76-10-S1203.html?v=C76-10-S1203_1800010118000101

 

 

 

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