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Utah’s Governor Should Veto Porn Filtering Mandate Bill

Utah Gov. Spencer Cox is weighing whether to sign into law a controversial legislative proposal that would mandate every mobile device sold in the state to come with preinstalled porn filtering software beginning at the start of 2022. I’ve been following House Bill (HB) 72, the bill in question, for months now.

I cover digital civil liberties and the public health of adult content creators on platforms like OnlyFans or CAM4 for several industry-focused publications like YNOT.com. You can see my coverage there, and how HB 72 has a very authoritarian tinge to it. I digress, though.

The point of my writing here is to remind the Republican-dominated state of Utah of the rash of free speech implications that HB 72 will have on more than just porn websites. State Rep. Susan Pulsipher, a Republican lawmaker who represents an overly conservative House district, introduced HB 72 with the intention of protecting children from being exposed to age-inappropriate content. While Pulsipher’s bill is ostensibly well-intentioned, she — with fanatical anti-porn advocates — presents a wholly unconstitutional fix to an issue that the private sector has been successfully dealing with for decades.

Since the dawn of the world wide web years ago, the adult entertainment industry saw the opportunity of the web serving as a revolutionary distribution channel. Studios saw opportunities to sell movies over e-commerce sites and publish their own videos directly to the web. Eventually, the popularity of tube sites like Xhamster or Pornhub flourished bringing in the age of free porn. Simultaneously, using the innovations of social networking over the internet, models and performers began operating independently of the big porn studios and started selling their content directly to their followers. Even in 2021, we are seeing the rise of a billion-dollar enterprise out of the premium subscription framework that powers sites like OnlyFans. Given that porn and how people purchase and look at it has changed, the Utah legislature needs to recognize the many shortcomings found in the engrossed version of HB 72.

First and foremost, HB 72 is meant to control pre-installed software and internet access for a mobile phone or tablet. If the bill becomes law, all phone and device manufacturers have to comply with the requirements laid out in HB 72 in order to sell next-generation products. That means, every new iPhone, Samsung Galaxy, or a cheapo Walmart-brand Onn tablet device must have software specifically designed for porn filtering installed and activated at the point of purchase from a retailer. If companies like Apple, Google, Samsung, and others, fail to meet this requirement, the state then has recourse to file a civil action against the companies for not following Utah law.

It is true that the bill allows for parents or adults to shut-off the filters once a device is purchased. You know, in an “opt-in, opt-out” fashion that is built into the actual regulatory language proposed under HB 72. But, the bill is still extremely problematic. Barring the debate over porn and religious righteousness, HB 72 could violate the commerce clause of the U.S. Constitution. It attempts to regulate the flow of goods that are most likely manufactured in foreign countries and places undue burdens on interstate commerce by requiring the installation of porn filtering software. Other states don’t require any such thing, thus making interstate commerce rules inconsistent with the mandate of Congress and the Constitution.

On a First Amendment basis, HB 72 directly suppresses a user’s access to constitutionally protected forms of expression. Despite what social conservatives in Utah may think, porn is protected speech as long as it is consensual and isn’t considered obscene. Most porn isn’t obscene by this standard and falls under the protection of several legal precedents that permit the sale and distribution of porn in a tightly regulated industry. Yes, porn is a tightly regulated industry

HB 72 violates people’s free speech rights, too. This includes performers, studios, affiliates, and websites, and consumers of pornographic videos and photos. Because of these reasons and more, I urge Gov. Cox to veto House Bill 72.