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Monday, October 14, 2024

Vagaries of public enforcement

As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.

Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).

The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.

In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.

Posted by Howard Wasserman on October 14, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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