Appeals Court: Utah’s Age Verification Is Currently Unchallengeable Because It’s A ‘Bounty’ Law

A year ago, we wrote about how a challenge brought by the Free Speech Coalition against Utah’s (obviously unconstitutional) age verification law couldn’t go forward because the district court noted (regrettably) that the structure of the law prevented FSC from challenging it before it went into effect.

The issue is that it’s a “bounty” law, in which the enforcement is not done by the state’s Attorney General or some other official, but through a private right of action. That means that any random person can sue someone who they believe is violating the law, and (if they’re right) receive a reward (bounty) down the line. I’m sure that won’t encourage all sorts of frivolous lawsuits from people looking to get free money and/or punish others, will it? These kinds of laws are increasingly popular across the political spectrum. Texas used it in its big anti-abortion law, while California did the same for its gun law.

These approaches are cynical and, well, bad. They’re basically vigilante laws, allowing citizens to sue just about anyone they think is violating the law, even if the violation has no impact whatsoever on the person suing. It’s just a recipe for creating a flood of often frivolous lawsuits. All to “own the libs/MAGA” depending on your state of choice.

One other “feature” of these kinds of bounty laws, though, is that they’re harder to challenge and possibly impossible to challenge before they go into effect. There’s some wonkiness in how challenges to laws work, which were highlighted in Supreme Court’s Moody decision earlier this year. Those focused on the difference between a “facial” challenge and an “as-applied” challenge. Without going too deep into the weeds, the facial challenge is “we’re challenging this whole law as completely unconstitutional with no redeeming value.” The “as applied” challenge would be challenging the law for how it’s applied.

Obviously, for the latter, you have to wait for the law to go into effect. Some might argue that this should be fine, but for many of these laws, there are very serious costs and decisions to be made to try to get into compliance. So if you can’t challenge them until they’re applied, many people and companies may have to waste a shit ton of money for a law that is probably unconstitutional, but which they can’t challenge until they’ve had to pay all those costs.

But, the way that you bring a facial challenge is that you sue the government official who would be enforcing the law. In lots of cases, that’s the Attorney General.

You may have caught up to where this is heading: if the law is “enforced” by a private right of action where random citizens get to bring a lawsuit, there’s no government official to challenge. Neat! Or, no, not neat. The other thing. Crazy. Bad.

So, yes, the Free Speech Coalition challenged Utah’s age verification law (just as it’s challenged other age verification laws elsewhere). But Utah’s age verification is a bounty law. There’s no enforcement by the state, just by random dipshits who want to “own the libs / try to get rich” or something. Thus, the lower court rejected the lawsuit, saying that FSC has no one to sue. At least the district court judge realized the situation sucked and explained that his hands were basically tied.

Free Speech Coalition appealed and, well, the 10th Circuit said, “yeah, hey, sorry, nothing we can do here.”

In sum, the Attorney General does not enforce or give effect to the Act and thus cannot be named as a defendant in this case under the Ex parte Young exception to Eleventh Amendment immunity. And because both defendants are immune from suit, we affirm the district court’s dismissal order without reaching the issues of ripeness and constitutional standing.

Judge Phillips has a dissent (in part) saying that, yes, Utah’s Attorney General can’t be sued to challenge this law, but he believes FSC should be able to sue the Commissioner of the Utah Department of Public Safety, who has some control over the age verification law:

As I see it, the Commissioner has a sufficient connection with SB 287’s enforcement to be sued under Ex parte Young’s exception to sovereign immunity. In Ex parte Young, the Court clarified that a state “officer must have some connection with the enforcement of the [challenged] act” to be exempt from sovereign immunity….

Here, the Commissioner gives effect to SB 287 through his oversight of the mDL program, which, pursuant to Utah’s Driver Licensing Act, directs the Driver License Division to “establish a process and system for an individual to obtain an electronic license certificate or identification card.”

To me, the dissent is compelling, but… it’s also the dissent.

Of course, as we speak, FSC has another case before the Supreme Court regarding the age verification law in Texas. If the Supreme Court follows historical Supreme Court precedent (a big fucking if with this crew of Justices, I know), then we could have a ruling next year making it clear that age verification laws are unconstitutional. That would be useful, but it would still be unclear who FSC can sue in Utah to get its law off the books.