119 F.4th 732
10th Cir.2024Background
- Plaintiffs, including Free Speech Coalition, Inc. and others, challenged Utah’s Online Pornography Viewing Age Requirements Act, which mandates age verification for online content deemed "harmful to minors."
- The Act allows private parties, not state officials, to sue entities that provide such content without age verification.
- Plaintiffs allege that the Act violates their First Amendment free speech rights, Fourteenth Amendment rights, and is unconstitutionally vague.
- The district court dismissed the case, finding that both the Utah Attorney General and the Commissioner of Public Safety are protected by Eleventh Amendment sovereign immunity, as they are not tasked with enforcing the Act.
- Plaintiffs appealed, arguing that the Ex parte Young exception to sovereign immunity should apply.
- A dissenting judge agreed with the majority regarding the Attorney General but argued the Commissioner has a sufficient connection through oversight of Utah’s state-issued mobile ID program.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of Ex parte Young Exception | Defendants are sufficiently connected to the Act’s enforcement | Neither enforces or gives effect to the Act | Exception does not apply; immunity bars claims |
| Attorney General's Enforcement Authority | AG's general authority is enough for Ex parte Young | AG has no specific enforcement role under the Act | AG lacks particular enforcement duty; not a proper defendant |
| Commissioner’s Role via mDL Program | Commissioner enables compliance via state-run mobile ID program | mDL program is independent and currently not online-active | Commissioner’s role too attenuated; does not enforce or give effect |
| Article III Standing and Ripeness (in dissent) | Injuries traceable to lack of compliance mechanism, ripe for review | Lack of operable mDL not AG's fault; no existing harm | Majority: did not reach, dissent: standing and ripeness satisfied |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (sets out exception to Eleventh Amendment immunity for suits seeking prospective relief against state officers who enforce unconstitutional laws)
- Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) (state officials in their official capacity have Eleventh Amendment immunity)
- Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007) (defining what it means for a state official to enforce or give effect to a law under Ex parte Young)
- Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) (official must have specific enforcement connection to statute to fall under Ex parte Young exception)
- Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021) (state officials must have enforcement authority over law to be proper defendants in pre-enforcement challenges)
- Hendrickson v. AFSCME Council 18, 992 F.3d 950 (10th Cir. 2021) (Ex parte Young requires more than general enforcement duty to support suit against state official)