From Free Speech Coalition, Inc. v. Anderson, decided today by Judge Ted Stewart (D. Utah):
In 2023, the Utah legislature passed a bill—S.B. 287—requiring commercial entities that provide pornography and other materials defined as being harmful to minors to verify the age of individuals accessing that material. A commercial entity may be held liable if it "fails to perform reasonable age verification methods to verify the age of an individual attempting to access the material," and a commercial entity that is found to have violated the law "shall be liable to an individual for damages resulting from a minor's accessing the material, including court costs and reasonable attorney fees as ordered by the court."
S.B. 287 identifies three reasonable age verification methods. Relevant here is the use of a "digitized information card." The Act defines "digitized identification card" as
a data file available on any mobile device which has connectivity to the Internet through a state-approved application that allows the mobile device to download the data file from a state agency or an authorized agent of a state agency that contains all of the data elements visible on the face and back of a license or identification card and displays the current status of the license or identification card.
Plaintiffs contend that S.B. 287 is unconstitutional and seek an order "enjoining the Commissioner of Utah's Department of Public Safety from permitting its data files to be downloaded for use" in the age verification process "and the Attorney General from otherwise intervening to enforce the Act." …
The court concluded that such lawsuits against government officials—such as the Utah Attorney General and the Utah official in charge of issuing identification cards—are permissible only if those officials are involved in enforcing the law. When a law is enforced through civil lawsuits by private individuals (as is the case with, say, libel law, most workplace harassment and discrimination law, and many other areas of the law), preenforcement challenges aren't available unless some specific likely plaintiff can be identified. The court relied extensively on Whole Woman's Health v. Jackson (2021), which held largely the same about Texas's SB 8, which authorized private lawsuits against abortion providers; but other precedents had so held as well. The court concluded:
