Free Speech Coalition v. Shurtleff (2005)

Litigation Summary Report (as of August 2006)
Relevant Documents and Links


The Free Speech Coalition (FSC) filed suit November 17, 2005 in federal district court in Salt Lake City, Utah, challenging the constitutionality and legality of that state’s anti-spam “child protection registry” law, which went into effect July 15, 2005.

The suit was filed on behalf of the sole plaintiff, Free Speech Coalition, by Utah attorney Jerome Mooney of the Mooney Law Firm, and lead attorneys Ira P. Rothken of the Rothken Law Firm and Gregory A. Piccionelli of Piccionelli & Sarno, with assistance from FSC attorneys Jeffrey J. Douglas and Reed Lee.

The alleged purpose of Utah’s Child Protection Registry Act (CPR Act; Utah Code Ann. § 13-29-101) is to protect minors from receiving email messages that promote products or services that cannot be lawfully sold to them and/or contain material that is “harmful to minors,” as defined by Utah (Utah Code Ann. § 76-10-1202(4)). It purports to do this by establishing a “Do Not Email” registry containing email addresses that belong to, or can be accessed by, Utah minors, and by criminalizing the sending of prohibited email to any email address listed in the registry for more than 30 days. It also provides criminal, administrative and civil enforcement mechanisms, and requires email marketers to “scrub” their lists against the registry for a per-scrub fee of $0.005.

Though its purpose is commendable, CPR Act is profoundly flawed in several respects. Most significantly, CPR Act conflicts directly with the so-called CAN-SPAM Act, which was enacted by Congress in 2003 to regulate and standardize email marketing in the United States, and specifically to prevent the unworkable “balkanization” of email regulation, which CPR Act and a similar soon-to-be-enacted law in Michigan exemplify. Indeed, in ratifying CAN-SPAM, Congress considered the creation of a national “Do Not Email” list, and directed the Federal Trade Commission (FTC) to prepare a plan for implementation. The FTC concluded, however, that such a registry was not feasible, would increase the prevalence of unsolicited email messages, and would expose our nation’s children to even more inappropriate content. A close look at CPR Act only validates the concerns of the FTC.

The 39-page FSC complaint identifies several other serious problems with CPR Act, including, but not limited to:

 

The FSC complaint asks the court to render CPR Act void and invalid, and to order the immediate cessation of the “child protection registry.”

Visit the FSC website at www.freespeechcoalition.com for more information. Comments or inquiries regarding this case or the CPR Act should be sent to legal@freespeechcoalition.com.

Documents and Links

Text of DoJ Amicus Brief November 3, 2006

FSC Utah Lawsuit Summary

FCS Memo in Opposition to Motion to Dismiss July 31, 2006

FSC Memorandum of Law in Opposition to Motion to Dismiss July 31, 2006

FSC Memo Exhibit A  July 31, 2006

FSC Motion for Preliminary Injunction May 2, 2006

State Repsonse to FSC Amended Complaint April 5, 2006

UNSPAM Response to FSC Amended Complaint March 31, 2006

FSC Second Amended Complaint March 2, 2006

FSC Amended Complaint January 17, 2006

Application to Supply Amici in support of FSC January 13, 1006

FTC Report to Congress on the Effectiveness and Enforcement of CAN-SPAM December, 2005

FSC Utah Complaint November 17, 2005

FTC Analysis of Proposed Illinois Registry October 25, 2005

Utah Anti-Spam Registry Website

Text of Utah Statute

Summary of Utah/Michigan Child Protection Registry Statutes

Article by Brian Livingston on Utah/Michigan Child Protection Registries

Audio: Utah House Debates HR 417 – Amendments to Utah CPR

 


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