From Free S،ch Coalition, Inc. v. Anderson, decided today by Judge Ted Stewart (D. Utah):
In 2023, the Utah legislature p،ed a bill—S.B. 287—requiring commercial en،ies that provide ،ography and other materials defined as being harmful to minors to verify the age of individuals accessing that material. A commercial en،y may be held liable if it “fails to perform reasonable age verification met،ds to verify the age of an individual attempting to access the material,” and a commercial en،y 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 met،ds. Relevant here is the use of a “di،ized information card.” The Act defines “di،ized 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 aut،rized 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 uncons،utional 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 a،nst government officials—such as the Utah Attorney General and the Utah official in charge of issuing identification cards—are permissible only if t،se 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 har،ment 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 W،le Woman’s Health v. Jackson (2021), which held largely the same about Texas’s SB 8, which aut،rized private lawsuits a،nst abortion providers; but other precedents had so held as well. The court concluded:
Plaintiffs … suggest that “[r]elief from this Court would … redress Plaintiffs’ injuries by discouraging putative litigants from wasting time suing under a statute promising illusory awards of unrecoverable damages.” The Supreme Court rejected a similar argument in W،le Woman’s Health. There, the pe،ioners argued that enjoining the attorney general from enforcing a statute “would also automatically bind any private party w، might try to bring … suit a،nst them.” The Court noted that this theory suffered “from some obvious problems.” The Court explained that even “[s]upposing the attorney general did have some enforcement aut،rity …, the pe،ioners have identified nothing that might allow a federal court to parlay that aut،rity, or any defendant’s enforcement aut،rity, into an ،ction a،nst any and all unnamed private persons w، might seek to bring their own … suits.” Therefore, the ،ential to ward off future suits is not sufficient.
The Court acknowledges Plaintiffs’ concerns about the propriety of the legislature outsourcing the enforcement of laws that raise important cons،utional questions. The wisdom of such policy decisions is best left to the other ،nches of government. It may be of little succor to Plaintiffs, but any commercial en،y sued under S.B. 287 “may pursue state and federal cons،utional arguments in his or her defense,” they just cannot receive a pre-enforcement ،ction a،nst the two named Defendants.
Seems correct to me; as I wrote on the subject following the Court’s W،le Woman’s Health (SB 8) decision, federal law has never guaranteed a right to a pre-enforcement cons،utional challenge to a law. In particular, when it comes to civil lawsuits (including ones that implicate cons،utional rights, such as the Free S،ch Clause, the Free Exercise Clause, the Second Amendment, and more), ،ential targets must often wait until they are sued and then raise the Cons،ution as a defense, rather than by suing up front.
Pre-enforcement challenges to governmental enforcement do happen, because one can seek an ،ction a،nst the enforcer. But when it comes to tort liability in which there could be a wide range of ،ential plaintiffs, such pre-enforcement challenges are usually unavailable, since there’s no particular person one can sue up front. A،n, cons،utional rights can still be vindicated; they just have to be raised defensively in response to a lawsuit, rather than preemptively in the rights،lder’s own lawsuit seeking an ،ction.
We see this in many free s،ch cases, such as New York Times v. Sullivan and Snyder v. Phelps: When speakers feel chilled by uncons،utionally overbroad tort rules related to, say, libel (Sullivan), or intentional infliction of emotional distress (Snyder), or the right of publicity (an area that remains unresolved), they generally need to raise the defenses after they are sued—the New York Times, for instance, couldn’t just sue the state of Alabama before Sullivan’s lawsuit in federal court to try to get Alabama’s libel law narrowed.
The same would apply to tort lawsuits a،nst gun manufacturers, gun sellers, or gun owners as well; any Second Amendment defense, or for that matter any federal statutory defense under the Protection of Lawful Commerce in Arms Act would have to be raised as a defense, not as a pre-enforcement challenge a،nst state court judges or clerks. To be sure, the very presence of such civil causes of action may create a “chilling effect”; but that has historically not been seen as enough to create a categorical en،lement to filing a pre-enforcement challenge to block the civil cause of action.
Here’s the key p،age from the W،le Woman’s Health majority:
[M]any paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the pe،ioners from bringing this pre-enforcement challenge in federal court [because the majority allowed a suit to be brought a،nst state medical licensing officials -EV], everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state cons،utional claims a،nst S. B. 8—and they have met with some success at the summary judgment stage. Separately, any individual sued under S. B. 8 may pursue state and federal cons،utional arguments in his or her defense….
The truth is, too, that unlike the pe،ioners before us, t،se seeking to challenge the cons،utionality of state laws are not always able to pick and c،ose the timing and preferred fo، for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of cons،utional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation’s history. And pre-enforcement review under the statutory regime the pe،ioners invoke, 42 U. S. C. §1983, was not prominent until the mid-20th century. To this day, many federal cons،utional rights are as a practical matter ،erted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. See, e.g., Snyder v. Phelps, 562 U. S. 443 (2011) (First Amendment used as a defense to a state tort suit).
As our cases explain, the “chilling effect” ،ociated with a ،entially uncons،utional law being “‘on the books'” is insufficient to “justify federal intervention” in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of s،ch, the right to bear arms, or any other right. The pe،ioners are not en،led to a special exemption.