Free Speech Coalition v. Anderson

119 F.4th 732

Opinion

Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 1, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

FREE SPEECH COALITION, INC.; D.S. DAWSON; JOHN DOE; DEEP CONNECTION TECHNOLOGIES, INC.; CHARYN PFEUFFER; JFF PUBLICATIONS, LLC,

Plaintiffs - Appellants,

v. No. 23-4104

JESS L. ANDERSON, in his official capacity as the Commissioner of the Utah Department of Public Safety; SEAN D. REYES, in his official capacity as the Attorney General of the State of Utah,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:23-CV-00287-TS) _________________________________

Jeffrey Keith Sandman of Webb Daniel Friedlander LLP, New Orleans, Louisiana (D. Gill Sperlein of Law Offices of D. Gill Sperlein, San Francisco, California, and Jerome Mooney of Weston, Garrou & Mooney, Salt Lake City, Utah, with him on the briefs), for Plaintiffs-Appellants.

Sarah Goldberg, Assistant Solicitor General (David N. Wolf and Lance Sorenson, Assistant Attorneys General, with her on the brief), Salt Lake City, Utah, for Defendants- Appellees. _________________________________

Before PHILLIPS, MORITZ, and EID, Circuit Judges. _________________________________ Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 2

MORITZ, Circuit Judge. _________________________________

In this action, plaintiffs Free Speech Coalition, Inc., D.S. Dawson, John Doe,

Deep Connection Technologies, Inc., Charyn Pfeuffer, and JFF Publications, LLC

seek to prevent defendants—the Attorney General of Utah and the Commissioner of

the Utah Department of Public Safety—from enforcing Utah’s recently enacted

Online Pornography Viewing Age Requirements (the Act), 2023 Utah Laws Ch. 262

(codified at Utah Code Ann. §§ 78B-3-1001 to -1002). The Act allows private parties

to sue commercial entities that provide certain restricted content without first

verifying that a user is at least 18 years old, and plaintiffs allege that it violates the

First Amendment (among other constitutional guarantees). See §§ 78B-3-1001 to -02.

The district court granted defendants’ motion to dismiss, holding in relevant part that

defendants were entitled to Eleventh Amendment immunity. In reaching this

conclusion, the district court rejected plaintiffs’ attempt to utilize the exception to

such immunity created in Ex parte Young, 209 U.S. 123 (1908), reasoning that the

exception did not apply because defendants did not enforce or give effect to the Act.

We similarly conclude that immunity bars plaintiffs’ claims. Because neither

defendant enforces or gives effect to the Act, Ex parte Young does not apply, and we

affirm dismissal.

2 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 3

Background

The Act requires certain commercial entities to verify the age of users seeking

to access “material harmful to minors” online.1 See § 78B-3-1002(1). It identifies

three approved methods for age verification: (1) “a digitized information card”;

(2) “an independent, third-party[,] age[-]verification service”; or (3) “any

commercially reasonable method that relies on public or private transactional data to

verify the age of the person attempting to access the material.” § 78B-3-1001(9).2 In

connection with this age-verification requirement, the Act creates a private cause of

action: “[a] commercial entity that is found to have violated this [Act] shall be liable

to an individual for damages resulting from a minor’s accessing the material.”

§ 78B-3-1002(3).

According to plaintiffs’ complaint,3 the Act violates their First Amendment

free-speech rights by imposing a content-based restriction on protected speech that

fails strict scrutiny. Plaintiffs additionally claim, among other things, that the Act

1 The Act defines the term “material harmful to minors” in part as “any material that the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.” § 78B-3-1001(5). 2 The Act uses the term “digitized information card” as one of the reasonable methods of age verification, “as defined in this section.” § 78B-3-1001(9)(a) (emphasis added). But the defined term in this section is “digitized identification card.” § 78B-3-1001(2) (emphasis added). Defendants invite us to “presume that the Utah [l]egislature intended to use these terms interchangeably.” Aplee. Br. 5 n.2. And because plaintiffs do not draw our attention to this distinction or make any argument based on it, we accept defendants’ invitation. 3 We accept the well-pleaded factual allegations in plaintiffs’ complaint as true at this stage. See Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). 3 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 4

violates their Fourteenth Amendment due-process and equal-protection rights

because it is unconstitutionally vague, impermissibly intrudes upon fundamental

liberty and privacy rights, and draws content-based distinctions among persons

engaged in free speech. Plaintiffs thus seek a declaration that the Act is

unconstitutional.

They also seek preliminary and permanent injunctive relief preventing the

Commissioner and the Attorney General from enforcing the Act. As to the

Commissioner, plaintiffs allege that he enforces the Act through his oversight of a

department that manages Utah’s Mobile Driver’s License program (mDL program),

which provides an official copy of an individual’s driver’s license or identification

card to their mobile device. See Utah Code Ann. § 53-3-235(1)(b) (directing driver-

license department to “establish a process and system for an individual to obtain an

electronic license certificate or identification card”). Plaintiffs allege that the mDL

program could provide one way of verifying a user’s age, even though they

acknowledge that the program “does not yet provide for the online verification

necessary for the card to be” used for that purpose. App. 20. As to the Attorney

General, plaintiffs contend that he enforces the Act through his general legal

authority in the state.

Defendants moved to dismiss, arguing that they are protected by Eleventh

Amendment immunity and that the Ex parte Young exception to that immunity does

not apply because they do not enforce the Act. The district court agreed with

4 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 5

defendants’ immunity argument and dismissed plaintiffs’ complaint for lack of

subject-matter jurisdiction.4 Plaintiffs appeal.

Analysis

We review a district court’s Eleventh Amendment analysis de novo. See

Hennessey v. Univ. of Kan. Hosp. Auth., 53 F.4th 516, 527 (10th Cir. 2022). “The

Eleventh Amendment constitutionalizes the doctrine of state sovereign immunity.”

Hendrickson v. AFSCME Council 18, 992 F.3d 950, 965 (10th Cir. 2021). It states

that “[t]he [j]udicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United States

by [c]itizens of another [s]tate, or by [c]itizens or [s]ubjects of any [f]oreign [s]tate.”

U.S. Const. amend. XI. This immunity extends as well “to suits brought by citizens

against their own state.” Hendrickson, 992 F.3d at 965. And it applies not just to suits

brought against states themselves but also to “suit[s] against a state official in his or

4 Defendants also argued that plaintiffs’ claims were not ripe and that plaintiffs lacked standing under Article III of the U.S. Constitution. As to ripeness, the district court determined that plaintiffs’ claims against the Commissioner were not ripe because, at the time of the decision, the mDL program did “not yet provide for online verification,” and speculations about its potential effect were “premature.” App. 256. And although the district court did not directly discuss Article III standing, it noted that plaintiffs’ requested relief, a preliminary injunction, would not redress their injury by warding off potential suits by private parties. Given that we resolve this case based on immunity, we do not reach ripeness or standing. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (explaining “that a federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits’” because “there is no mandatory ‘sequencing of jurisdictional issues’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584–85 (1999))). 5 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 6

her official capacity.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

But Ex parte Young created an exception under which individuals can sue state

officers in their official capacities if the lawsuit seeks prospective relief for an

ongoing violation of federal law. 209 U.S. at 159–60; see also Hendrickson, 992 F.3d

at 965. To come within this exception, the “state official ‘must have some connection

with the enforcement’ of the challenged statute.” Hendrickson, 992 F.3d at 965

(quoting Ex parte Young, 209 U.S at 157). Though the official need not “have a

‘special connection’ to the unconstitutional act or conduct,” they must “have a

particular duty to ‘enforce’ the statute in question and a demonstrated willingness to

exercise that duty.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828

(10th Cir. 2007) (quoting Ex parte Young, 209 U.S. at 157). An official enforces a

law when they “clearly . . . assisted or currently assist in giving effect to the

[contested] law.” Id. (footnote omitted); see also id. at 828 n.15 (noting that “‘[t]o

give effect’ is the definition of ‘enforce’” (quoting Webster’s Third New

International Dictionary 751 (1986))).

Here, the district court concluded that even though plaintiffs seek prospective

relief for an alleged ongoing violation of federal law, neither defendant enforced or

gave effect to the allegedly unconstitutional Act for purposes of the Ex parte Young

exception. Plaintiffs dispute this ruling, and we consider application of the exception

to each defendant in turn.

I. The Commissioner of the Utah Department of Public Safety

Although plaintiffs alleged and argued that the Commissioner enforced the Act

6 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 7

through his management of the mDL program, the district court disagreed. It first

noted that the Act itself places enforcement authority with private third parties, not

with the Commissioner. And in rejecting plaintiffs’ mDL argument, the district court

determined that even though the mDL program provides a digitized identification

card—thereby potentially supplying one of the three statutory options for age

verification under the Act—this connection was too attenuated to conclude that the

Commissioner gives effect to the Act by managing the mDL program. The district

court also noted that the mDL program’s “functionality is currently limited to an in-

person scan” and thus does not allow for online age verification. App. 256. So, the

district court reasoned, the Commissioner had not assisted and was not currently

assisting in giving effect to the Act.

On appeal, plaintiffs reassert their position that the Commissioner is

sufficiently connected to the Act because he oversees the mDL program, which

plaintiffs describe as the “only [s]tate-assured ‘reasonable age[-]verification method’

compliant with the Act.” Aplt. Br. 13 (quoting § 78B-3-1001(9)). But critically, the

mDL program does not currently provide for online age verification and thus could

not possibly give effect to the Act in its current state, regardless of its potential

relevance. Plaintiffs seek to characterize the mDL’s lack of operability as a

“dereliction” of the Commissioner’s duty to ensure a viable means of age

verification. Id. at 14. Yet this argument puts the cart before the horse—nothing in

the Act expressly refers to the mDL program or promises a state-sponsored means of

7 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 8

age verification, so the Commissioner has no such duty to begin with.5 Nor does the

mDL statute require the online functionality that would allow it to operate as a means

of complying with the Act.6 For this reason, the Commissioner neither enforces nor

gives effect to the allegedly unconstitutional Act for purposes of the Ex parte Young

exception.7

Resisting this conclusion, plaintiffs argue that our decision in Prairie Band,

476 F.3d 818, supports their position that the Commissioner’s oversight of the mDL

program gives effect to the Act. There, an Indian tribe in Kansas sued the state’s

Director of Vehicles and Superintendent of the Highway Patrol to prevent the

5 The dissent suggests that the Act refers to the mDL program by including the terms “state-approved” and “license or identification card” in the definition of “digitized identification card.” See § 78B-3-1001(2). Plaintiffs do not make this textual argument, and it fails to persuade us; the Act could have expressly referred to the preexisting mDL program, and it does not do so. 6 The dissent speculates that if the mDL program “function[ed] as intended,” then the Commissioner’s supervision of the program would give effect to the Act. Dissent 8 (emphasis added). But the dissent provides scant support for its position that the mDL program is “intended” to operate in a way that would effectuate compliance with the Act. Id. At best, the dissent elsewhere points to statements on the website for Utah’s public-safety department noting “that ‘online or unattended verification’ is part of the ‘future of [the] mDL [program].’” Id. at 2 (emphasis omitted) (quoting Utah Dep’t of Pub. Safety, Utah mDL FAQs, https://dld.utah.gov/mdlfaqs/ [https://perma.cc/TM9W-NR78]). Unsurprisingly, plaintiffs do not cite or seek to rely on these statements in their complaint or on appeal. The reason is simple: a website’s forecast of the future contours of the mDL program does not establish a present-day legal duty to ensure that the program provides a state-sponsored means of complying with the Act. 7 Defendants additionally argue that the Commissioner’s enforcement connection to the Act is diminished by the availability of other methods of compliance. Plaintiffs dispute the functional availability of those other methods, but we need not delve into that dispute because the availability of other methods of compliance tells us nothing about whether defendants have the requisite connection to the Act to be amenable to suit under Ex parte Young. 8 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 9

enforcement of a law requiring that Kansas drivers have license plates registered with

Kansas or a reciprocal state. Id. at 820. Because the tribe was located within the

bounds of the state of Kansas, it did not fall under the law’s reciprocity exception,

and drivers with tribally registered vehicles risked violating the Kansas statute;

indeed, several had received tickets prior to the lawsuit. Id. at 820–21. We held that

the Ex parte Young exception applied to permit suit against these defendants because

each “assisted . . . in giving effect to the law.” Id. at 828 (footnote omitted). In

particular, the director gave effect to and enforced the Kansas registration statute by

“manag[ing] vehicle registrations and titles and supervis[ing] vehicle reciprocity,”

and the superintendent did so by “enforc[ing] traffic and other laws of the [s]tate

related to highways, vehicles, and drivers of vehicles.” Id.

Plaintiffs maintain that, just as the director and superintendent gave effect to

the Kansas registration statute in Prairie Band, “the Commissioner ‘give[s] effect’ to

the . . . Act by . . . providing a critical channel for constitutionally[ ]protected

speech.” Aplt. Br. 15. We disagree. Like the district court reasoned, the

Commissioner’s authority over the mDL program is far more attenuated than the

enforcement connections in Prairie Band. There, the director managed registrations

and had express authority to deny the validity of tribal vehicle registrations for

purposes of reciprocity; and the superintendent enforced violations of the registration

law by issuing tickets. See Prairie Band, 476 F.3d at 828. But here, the

Commissioner’s authority over the mDL program does not give similar effect to the

Act. To begin with, the mDL program is not required to and does not currently

9 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 10

provide for online age verification. Moreover, the Act and the mDL program exist in

parallel: neither depends on the other. So even if the mDL program did provide for

online age verification, the Commissioner supervises that program independently

from the Act and not as a means of enforcing or giving effect to the Act. And on the

other hand, if the mDL program did not exist, compliance with the Act would still be

possible via the other verification methods, and private parties could still assert

violations of the Act. So Prairie Band offers the plaintiffs little assistance here.8

But we do find analogous facts and persuasive authority in Peterson, 707 F.3d

1197. There, a plaintiff sued the Director of Colorado Public Safety to challenge a

statute that limited concealed handgun licenses to Colorado state residents and

residents of states with established reciprocity. Id. at 1202. Because the statute

expressly delegated enforcement responsibility to sheriffs, we held that Ex parte

Young did not exempt the director from Eleventh Amendment immunity. Id. at 1206–

07. In so doing, we rejected the plaintiff’s argument that the director’s maintenance

of a database of the states with reciprocity provided the requisite connection. Id. at

1206. In particular, we explained that “maintenance of a database may provide a

8 The dissent also invokes a portion of the Supreme Court’s recent ruling in Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), but we find this case easily distinguishable. There, the Court held that certain licensing-board defendants could be sued under the Ex parte Young immunity exception because they had separate and preexisting authority to “take enforcement actions against” anyone who violated the statute at issue. Id. at 45–46 (emphasis added). This direct enforcement duty stands in stark contrast to the Commissioner’s oversight of a program that provides him with no existing mechanism to enforce the Act and only might provide one of three possible compliance methods at some undetermined future point. 10 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 11

convenient source for sheriffs seeking information relevant to . . . reciprocity, but

[Ex] parte Young requires a nexus between the defendant and ‘enforcement’ of the

challenged statute.” Id. (quoting Ex parte Young, 209 U.S. at 157). The same is true

here: the Commissioner’s mDL program may (eventually) offer one convenient way

to verify a user’s age for purposes of complying with the Act, but it does not amount

to “a particular duty to ‘enforce’ the statute in question.” Id. (quoting Prairie Band,

476 F.3d at 828). Because the plaintiffs have failed to show the requisite nexus

between the Commissioner and the enforcement of the challenged statute, the

Commissioner does not fall within the Ex parte Young exception and is entitled to

sovereign immunity.

II. The Attorney General

Plaintiffs invoke the Attorney General’s blanket authority over state law as the

requisite connection to the Act. The district court disagreed, concluding that the

Attorney General lacked the requisite connection because the Act expressly places

enforcement authority in the hands of private citizens: “[a] commercial entity that is

found to have violated this section shall be liable to an individual for damages.”

§ 78B-3-1002(3) (emphasis added). And the district court reasoned that in this

context, the Attorney General’s generic duty to enforce the laws of the state was

insufficient to invoke Ex parte Young.

On appeal, plaintiffs maintain that even though the Act includes only a private

right of action, the Attorney General is nevertheless excepted from immunity based

on his general legal authority in the state of Utah. Yet the Supreme Court identified

11 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 12

the flaw in this argument in Ex parte Young. There, the Court explained that if a

general duty to enforce the law were sufficient to avoid immunity, “then the

constitutionality of every act passed by the legislature could be tested by a suit

against the governor and the attorney general” because the governor is, “in a general

sense, charged with the execution of all [a state’s] laws” and the attorney general

“might represent the state in litigation involving the enforcement of its statutes.” Ex

parte Young, 209 U.S. at 157. The Court recognized that although this “would be a

very convenient way for obtaining a speedy judicial determination of questions of

constitutional law which may be raised by individuals,” it would be inconsistent with

state sovereign immunity. Id.

Consistent with this guidance, we have explicitly held that Ex parte Young

requires something “more than a mere general duty to enforce the law.” Hendrickson,

992 F.3d at 965 (quoting 13 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3524.3 (3d ed. Oct. 2020 update)). In Hendrickson, the

plaintiff worked for the state and sought a declaration that a New Mexico statute

authorizing a public-sector union to serve as his exclusive bargaining representative

violated his First Amendment rights. Id. at 956. Among other defendants, the plaintiff

sued New Mexico’s governor and attorney general, arguing that both officials

enforced the relevant statute. Id. Relying on Chamber of Commerce of the United

States v. Edmondson, 594 F.3d 742 (10th Cir. 2010), we concluded that the governor

and attorney general did not fall within the Ex parte Young exception because their

only connection to the challenged statute—which placed enforcement authority in an

12 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 13

independent board—was “their general enforcement power.” Id. at 967; see also

Edmondson, 594 F.3d at 754, 760 (holding that attorney general was not proper

defendant for challenge to portion of statute designating certain conduct as

discriminatory practice because attorney general lacked authority to prosecute that

kind of discriminatory practice and statute placed enforcement authority in human-

rights commission).

Just as the statute in Hendrickson vested enforcement authority in an

independent board, the statute here places enforcement authority with private

individuals. See Hendrickson, 992 F.3d at 960; cf. Edmondson, 594 F.3d at 754.9

Additionally, just as the governor in Hendrickson lacked the authority to remove

members of that independent board at will, the Attorney General here lacks any

power to direct the actions of private actors or prevent them from seeking

enforcement of the Act. See Hendrickson, 992 F.3d at 966.

Resisting this authority, plaintiffs rely on Petrella v. Brownback, 697 F.3d

1285 (10th Cir. 2012). There, the plaintiffs challenged a Kansas law restricting the

allocation of local property taxes to local school districts and named Kansas’s

attorney general as a defendant. Id. at 1291. We noted that “the proper vehicle for

challenging the constitutionality of a state statute, where only prospective,

9 Seeking to distinguish Edmondson, plaintiffs maintain that our holding in that case resulted from the plaintiffs’ “fail[ure] to connect the dots” by invoking the general authority of the attorney general. Aplt. Br. 22. Not only is this sheer speculation, it ignores that the statute in Edmondson specifically vested enforcement authority in a human-rights commission. See 594 F.3d at 754. 13 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 14

non[]monetary relief is sought, is an action against the state officials responsible for

the enforcement of that statute.” Id. at 1293–94 (citing Ex parte Young, 209 U.S. at

161). We then tacitly concluded that the attorney general fell within the Ex parte

Young exception and was a proper defendant because he “ha[d] responsibility for the

enforcement of the laws of the state.” Id. at 1294.

Plaintiffs maintain that the Attorney General in this case similarly falls within

the Ex parte Young exception based on his general responsibility for enforcing Utah

state laws. But crucially, the statute at issue in Petrella did not include any particular

enforcement provisions, meaning that the ability to enforce it was necessarily

encompassed by the attorney general’s overall enforcement authority. Id. (citing Kan.

Stat. Ann. § 75-702, which imparts attorney general with “authority to prosecute any

matter related to a violation of” a range of Kansas codes). Here, by contrast, the Act

places enforcement ability specifically with private individuals. See § 78B-3-1002(3).

Indeed, we distinguished Petrella on precisely these grounds in Hendrickson, and we

do so again here. See Hendrickson, 992 F.3d at 967–68.

The Supreme Court’s recent ruling in Whole Woman’s Health, 595 U.S. 30,

only fortifies our precedent. There, in relevant part, the Court held that a state

attorney general could not be sued in a pre-enforcement challenge to an abortion

regulation that placed enforcement authority in the hands of private parties. The

Court emphasized that in such context, the attorney general possessed no

“enforcement authority . . . that a federal court might enjoin him from exercising.” Id.

at 43. Plaintiffs unsuccessfully seek to distinguish Whole Woman’s Health by

14 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 15

highlighting that there, “the specific statute . . . forbade any [a]ttorney[-g]eneral

enforcement whatsoever,” whereas the statute here does not expressly “sever[] the

connection between the [attorney general’s] duties and the . . . Act.” Aplt. Br. 31–32.

But the enforcement inquiry under Ex parte Young does not ask whether enforcement

has been expressly prohibited; it asks whether a defendant enforces or gives effect to

the law. See 209 U.S. at 157. And Whole Woman’s Health’s holding did not turn on

the fact that the challenged statute explicitly divested enforcement authority from

state officials—the Court did not even mention as much. Instead, it simply explained

that the plaintiffs failed to “direct this Court to any enforcement authority the

attorney general possesses in connection with [the challenged statute] that a federal

court might enjoin him from exercising.” Whole Woman’s Health, 595 U.S. at 43.

Similarly, plaintiffs here do not point us to any enforcement authority the Attorney

General possesses in connection with the Act.

Finally, plaintiffs argue that even if the Attorney General is not bound to

enforce the Act by his general legal duties, he is nevertheless a proper defendant

under Ex parte Young because Utah Code Ann. § 67-5-1(1)(g) requires him to offer

his “opinion in writing . . . to any state officer, board, or commission.” In support,

plaintiffs point to Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). There, we held

that the state attorney general was a proper defendant in a challenge to Utah’s laws

banning same-sex marriage because he had supervisory authority over the county

clerks who were in charge of issuing marriage licenses (in contrast to an earlier case

reaching the opposite result where marriage licenses were in exclusive control of the

15 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 16

judiciary). Id. at 1199–202, 1204. As an additional example of the attorney general’s

authority over “state agencies with responsibility for the recognition of out-of-state

marriages,” we reasoned that § 67-5-1(g) empowered the attorney general to direct

the state tax commission to recognize joint tax returns filed by same-sex couples. Id.

at 1203. So plaintiffs argue that here, “the Attorney General could direct the

Commissioner to administer the mDL program in ways that would mitigate or

eliminate the constitutional harms imposed by the . . . Act.” Aplt. Br. 20. But as

already discussed, the Commissioner does not give effect to the Act. And even if he

did, the connection plaintiffs seek to draw is far more attenuated than in Kitchen and

is simply too tenuous to permit us to conclude that the Attorney General has

enforcement authority over the Act. Cf. Kitchen, 755 F.3d at 1203 (explaining

attorney general’s authority to direct tax commission to recognize same-sex joint

filings); Doyle v. Hogan, 1 F.4th 249, 256 (4th Cir. 2021) (holding that state law

requiring attorney general to “‘[g]ive his opinion in writing . . . on any legal matter or

subject’” did not “give the [a]ttorney [g]eneral control over enforcing the [challenged

a]ct” (first alteration and omission in original) (quoting Md. Const. art. V,

§ 3(a)(4))).

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.

16 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 17

Conclusion

The state sovereign immunity enshrined in the Eleventh Amendment confers

immunity on the Attorney General and the Commissioner in their official capacities,

and because neither official enforces or gives effect to the Act, the Ex parte Young

exception to that immunity does not apply. We therefore affirm the district court’s

order dismissing plaintiffs’ complaint.

17 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 18

23-4104, Free Speech Coalition, Inc., et al. v. Anderson, et al. PHILLIPS, J., dissenting in part.

I agree with the majority that the Utah Attorney General lacks a

sufficient connection to the enforcement of Utah Code Ann. §§ 78B-3-1001

to -1002 (SB 287) to be a proper defendant under Ex parte Young, but I

disagree that the Commissioner of the Utah Department of Public Safety

similarly lacks such a connection. In my view, the Plaintiffs have shown that

the Commissioner gives effect to the Act and is therefore a proper defendant

under Ex parte Young; consequently, I would reverse in part and remand for

further proceedings as to the Commissioner.

I. The Commissioner may be sued under Ex parte Young.

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. 209 U.S. 123, 157 (1908). In this circuit, to

“enforce” a law means “[t]o give effect” to it, so though a state actor may “not

[be] specifically empowered to ensure compliance with the statute at issue,”

that state actor is a proper defendant if he or she “assist[s] . . . in giving effect

to the law.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 &

n.15 (10th Cir. 2007). So under Prairie Band, “giving effect to” a statute does Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 19

not mean that an official must “ensure compliance” with it, such as through

exercising prosecutorial authority. Id.

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.” Utah Code Ann.

§ 53-3-235(1)(b). Per the statute, this duty commenced on January 1, 2022, id.,

and so was already in existence when SB 287 became effective on May 3, 2023,

§ 78B-3-1002. The Utah Department of Public Safety’s website describes the

electronic identification card as “an official signed copy of your driver license

or identification card placed on your mobile device for you to control,” which,

“[u]nlike the physical card and barcode, [allows] you [to] . . . limit the data you

share with businesses or entities that you interact with.” Utah Department of

Public Safety, Utah Mobile Driver License (mDL) Program,

https://dld.utah.gov/utahmdl [https://perma.cc/CS5F-C8TA]. The mDL website

also asserts that “online or unattended verification” is part of the “future of

mDL.” Utah Department of Public Safety, Utah mDL FAQs,

https://dld.utah.gov/mdlfaqs [https://perma.cc/QPE5-TQEN] (emphasis added).

Though § 53-3-235(1)(b) does not specify that the electronic-

identification card must have online functionality, the Driver License Division

publicly contemplates this in its plans. And though not explicitly, SB 287 refers

2 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 20

to the Utah Department of Public Safety’s mDL program in its definition of a

“[d]igitized identification card”:

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 authorized 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.

§ 78B-3-1001(2) (emphases added). The cross-referencing between SB 287 and

the mDL program seems evident in SB 287’s use of the term “[d]igitized

identification card,” id. (emphasis added)—which tracks the Driver Licensing

Act’s use of the term “electronic . . . identification card,” § 53-3-235(1)(b)

(emphasis added)—even though SB 287 elsewhere uses the term “[d]igitized

information card,” § 78B-3-1001(9)(a) (emphasis added). The parties do not

direct us to another “state-approved” system that would provide a digitized

“license or identification card” other than the mDL program. § 78B-3-1001(2).

The Defendants assert that the Plaintiffs have two other methods by

which to comply with SB 287. But the Plaintiffs respond that the other two

methods are impossible or pose unacceptable risks of noncompliance. 1 The

1 The three methods provided for in SB 287 are:

(9) “Reasonable age verification methods” means verifying that the person seeking to access the material is 18 years old or older by using any of the following methods:

(footnote continued) 3 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 21

Plaintiffs argue that the state-provided digitized identification card “is not just

a legislatively-designed ‘fast lane’ to regulated content on the internet; it might

in fact be the only lane” because “the Legislature has so rigidly defined the

‘reasonable age verification methods’ that existing private age-verification

vendors are almost certainly out of compliance with the demands of Utah law.”

Op. Br. at 13. The Plaintiffs raised similar points below, and because this is an

appeal from a motion to dismiss based on subject-matter jurisdiction, we take

the Plaintiffs’ “allegations in the complaint as true.” Peterson v. Martinez, 707

F.3d 1197, 1205 (10th Cir. 2013).

In their complaint, the Plaintiffs allege that the third option under

subsection (c) is too vague to implement: “The statutory catch-all permitting

‘any commercially reasonable method that relies on public or private

(a) use of a digitized information card as defined in this section; (b) verification through an independent, third-party age verification service that compares the personal information entered by the individual who is seeking access to the material that is available from a commercially available database, or aggregate of databases, that is regularly used by government agencies and businesses for the purpose of age and identity verification; or (c) any commercially reasonable method that relies on public or private transactional data to verify the age of the person attempting to access the material.

§ 78B-3-1001(9).

4 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 22

transactional data’ as a means of verifying a user’s age provides no guideposts

whatsoever, as ‘commercially reasonable’ is a vague term not defined by the

Act.” App. at 31 ¶ 43 (quoting § 78B-3-1001(9)(c)). And they point out that

“nothing requires that any such methods be made available to all website

operators, operate reliably with common computer software, or even exist in

the first place.” Id. at 33 ¶ 49. Without a state-approved compliance

mechanism, they argue, “Utah may not statutorily impose a prior restraint only

to leave its operation entirely to others who may or may not take up the

mantle—particularly when leaving key terms like ‘commercially reasonable’

undefined.” Id.

The Plaintiffs further allege that some websites have shut down service in

Utah because of SB 287, and that other sites are inaccessible because there is

no viable age-verification method available to allow viewers to access those

sites. See, e.g., id. at 15 ¶ 13 (“PornHub has shut down access to Utahns, [and

so] Dawson has been unable to access his own account . . . .”); id. at 16 ¶ 14

(“[B]ecause Utah’s only digital identification card does not offer online

verification capabilities,” Plaintiff John Doe, an attorney, “has no way to

access [his client’s] sites at all.”). If the other two methods were workable, the

operators of websites like Pornhub would likely have found a way to comply

with SB 287.

What’s more, other evidence in the record supports the complaint’s

allegations about the lack of workability of subsections (b) and (c): Addressing

5 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 23

subsection (b), the Executive Director of Free Speech Coalition (FSC) noted

that “verification through ‘an independent, third-party age verification service’

[is not] possible where compliance demands that the service cross-reference

personal information of Utah residents against ‘a commercially available

database . . . that is regularly used by government agencies and business for the

purpose of age and identity verification.’” App. at 83. This is because “Utah

does not provide access to its identity databases to third-party vendors.” Id.

Addressing the third option under subsection (c), FSC’s Executive Director

noted that “verification via ‘any commercially reasonable method’ is also

impossible where that method must rely on ‘public or private transactional

data’ to verify the user’s age. FSC members do not know what ‘commercially

reasonable’ means and do not know of third-party vendors using such

transactional data to age-verify users.” Id. at 83–84.

Given the vagueness of and technical difficulties with subsections (b) and

(c), the Commissioner’s connection to SB 287’s enforcement through the mDL

program referenced in subsection (a) becomes more obvious. As I see it,

because the Commissioner oversees the mDL program—the only state-approved

compliance mechanism available to the Plaintiffs—he has a sufficient nexus

with SB 287’s enforcement to be a proper defendant under Ex parte Young.

The majority puts much weight on the independence of the mDL program

from SB 287. But contrary to what the majority suggests, it does not matter that

“the Act and the mDL program exist in parallel,” that “neither depends on the

6 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 24

other,” or that “the Commissioner supervises that program independently from

the Act.” Maj. Op. at 10. The Commissioner’s duty need not be “declared in the

same act which is to be enforced” but “if it otherwise exist it is equally

efficacious.” Ex parte Young, 209 U.S. at 157. And “whether [the

Commissioner’s duty] arises out of the general law, or is specially created by

the act itself, is not material so long as it exists.” Id.

More recently, in Whole Woman’s Health v. Jackson, the Court

concluded that several medical licensing-board officials had a sufficient

connection with a state law providing for an exclusively private right of action

against abortion providers (SB 8), even though those officials were appointed

under a different, independent, and pre-existing part of Texas’s code than SB 8.

595 U.S. 30, 35, 45–46 (2021). Those licensing-board defendants certainly did

not depend on a newly added section of the Health and Safety Code (SB 8) for

their longstanding disciplinary role under the Occupations Code, nor did SB 8’s

private civil enforcement mechanism depend on the licensing-board defendants.

See id. Yet the Court found that they met Ex parte Young’s exception because

“[e]ach of these individuals is an executive licensing official who may or must

take enforcement actions against the petitioners if they violate the terms of

Texas’s Health and Safety Code, including S. B. 8.” Id. (emphasis added). In

the Court’s view, then, at least some of the licensing officials’ duties to enforce

SB 8 were discretionary, yet the Court still found a sufficient connection for

them to be proper defendants under Ex parte Young.

7 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 25

As Whole Woman’s Health teaches, the Commissioner’s oversight of the

mDL program—the only state-approved compliance mechanism contemplated

in SB 287—need not be established at the same time, or in the same section of

code, as SB 287. Nor need the Commissioner’s duty be a mandatory one. The

important thing is that “it exists.” Ex parte Young, 209 U.S. at 157.

Another sticking point for the majority (and the district court) is the mDL

program’s current lack of online functionality, which it finds contraindicative

of a connection between the Commissioner and SB 287’s enforcement:

“[C]ritically, the mDL program does not currently provide for online age

verification and thus could not possibly give effect to the Act in its current

state, regardless of its potential relevance.” Maj. Op. at 7; Free Speech Coal. v.

Anderson, 685 F. Supp. 3d 1299, 1305 (D. Utah 2023) (“Further, as noted, the

mDL program’s online verification is not currently operative. Its functionality

is currently limited to an in-person scan. As such, it can hardly be said that

Commissioner Anderson clearly has assisted or currently assists in giving S.B.

287 effect.”).

I don’t think that is the law. To me, if a state-run program that functions

as intended “gives effect” to another law by providing the only state-approved

mechanism by which to comply with that other law, then by virtue of its

existence and its scope it “gives effect” to that law, regardless of whether it

currently functions as intended.

8 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 26

This is the key difference between this case and Peterson, a case the

majority finds comparable. The majority likens the official’s oversight of the

state-reciprocity database in Peterson to the Commissioner’s oversight of the

mDL program here. But in Peterson, the database’s functioning had no bearing

on the public’s ability to comply with the concealed-carry law or the sheriffs’

ability to enforce it. 707 F.3d at 1206. The reciprocity database merely

provided “a convenient source for sheriffs seeking information relevant to . . .

reciprocity” when they enforced the statute. Id. So the database could not have

“give[n] effect” to the concealed carry law, Prairie Band, 476 F.3d at 828 n.15

(citation omitted), whether through enforcement or through compliance,

because the database was wholly incidental to the concealed-carry law, see

Peterson, 707 F.3d at 1206. If the reciprocity database in Peterson stopped

functioning, nothing material would change about the sheriffs’ enforcement of

or the public’s compliance with the law. But take away the mDL’s online

functionality here, and compliance with SB 287 is not possible.

So I respectfully disagree with the majority and would hold that by

overseeing the only state-approved compliance mechanism in the statute, the

Commissioner has a sufficient connection to SB 287’s enforcement to be sued

under Ex parte Young’s exception to sovereign immunity.

9 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 27

II. The Plaintiffs have Article III standing.

The majority does not reach the Defendants’ standing and ripeness

arguments because it resolves the case on sovereign-immunity grounds.

Because I would reverse, I briefly address standing and ripeness.

To establish Article III standing, “a plaintiff must demonstrate (i) that

she has suffered or likely will suffer an injury in fact, (ii) that the injury likely

was caused or will be caused by the defendant, and (iii) that the injury likely

would be redressed by the requested judicial relief.” Food & Drug Admin. v.

All. for Hippocratic Med., 602 U.S. 367, 380 (2024). Related to those standing

elements, we also review “whether a claim is ripe for review.” United States v.

Vaquera-Juanes, 638 F.3d 734, 736 (10th Cir. 2011) (quoting New Mexicans

for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498–99 (10th Cir. 1995)).

A. Injury

On appeal, the Defendants do not challenge that the Plaintiffs have

suffered injury, nor did the district court hold otherwise, and so I focus on the

causation and redressability aspects of standing. But the causation and

redressability prongs of the standing inquiry require us to parse the connection

between the Commissioner and the Plaintiffs’ injuries; so we first need to

understand the injuries the Plaintiffs have suffered (and will suffer) so we can

assess what caused them and how they may be redressed.

The Plaintiffs comprise FSC and several different individuals and

entities. FSC “sues on its own behalf and on behalf of its members,” who are

10 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 28

“businesses and individuals involved in the production, distribution, sale, and

presentation of constitutionally-protected and non-obscene materials that are

disseminated to consenting adults via the internet.” App. at 14 ¶ 12. Among the

individual plaintiffs here are D. Dawson, a 30-year-old resident of Utah who

writes gay erotica and produces AI-narrated audiobooks: he drives traffic to his

e-commerce site from adult sites such as PornHub and xHamster. But since SB

287 went into effect “PornHub has shut down access to Utahns” and so Dawson

“has been unable to access his own account” forcing him to consider “buy[ing]

a VPN subscription as an end-around.” Id. at 15–16 ¶ 13.

Another plaintiff, John Doe, is a Utah-based attorney who “represents

various adult bookstores and sexual device manufacturers, which requires that

he occasionally visit websites that contain a substantial portion of material that

may be deemed ‘harmful to minors’ under the Act.” Id. at 16 ¶ 14. “[B]ecause

Utah’s only digital identification card does not offer online verification

capabilities, he currently has no way to access those sites at all.” Id.

Another plaintiff provides “a judgment-free online educational platform

focused on sexual wellness” for clients around the world, including the United

States, and reaches 39,000 people in Utah alone. Id. ¶ 15. That plaintiff fears

that its online school “contains a ‘substantial portion’ of content that meets the

statutory definition of ‘material harmful to minors’” and that Utah teenagers

will be unable to access this educational content under SB 287. Id. at 17 ¶ 15.

11 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 29

Another individual plaintiff is a creator of online sexual content, much of

which meets the statutory definition of “material harmful to minors.” Id. at 18

¶ 16. Though she “is fastidious about ensuring that her fans are adults, she

worries that her low-tech efforts do not meet the definition of ‘reasonable age

verification methods.’” Id.

And another plaintiff operates an online platform that allows

“independent producers/performers of erotic audiovisual works to publish their

content” on a channel hosted by that platform, and to give fans access to that

content through subscriptions. Id. ¶ 17. Those content producers often drive

traffic to their channel from their social media sites. That plaintiff is “confused

about what constitutes ‘reasonable age verification methods’” and is

“concerned about the costs of compliance.” Id. at 19 ¶ 17. FSC and the

individual plaintiffs allege that SB 287 violates the First and Fourteenth

Amendments because it is an unconstitutional prior restraint and chills

protected speech, that it is impermissibly vague, and that it violates the

Commerce and Supremacy Clauses.

B. Causation & Redressability

The Plaintiffs must show that there is “a causal connection between the

injury and conduct complained of” so that the injury is “fairly traceable to the

challenged action of the defendant.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992) (cleaned up). And they must show that it is “likely as opposed

to merely speculative that the injury will be redressed by a favorable decision.” 12 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 30

Id. at 561 (cleaned up). Importantly, a “plaintiff satisfies the redressability

requirement when he shows that a favorable decision will relieve a discrete

injury to himself. He need not show that a favorable decision will relieve his

every injury.” Massachusetts v. E.P.A., 549 U.S. 497, 525 (2007) (quoting

Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)); accord Consumer Data

Indus. Ass’n v. King, 678 F.3d 898, 905 (10th Cir. 2012) (“There are . . .

several decades of Supreme Court precedent [under which] . . . redressability is

satisfied when a favorable decision relieves an injury, not every injury.”).

These two inquiries are bound up with the Ex parte Young analysis, because if

there is a connection between the Defendants’ enforcement of the challenged

statute, then there will also be causation and redressability, and vice versa. See

Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013) (“[T]here is a

common thread between Article III standing analysis and Ex parte Young

analysis.” (citing Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908,

919 (9th Cir. 2004))). And traceability and redressability themselves “overlap

as two sides of a causation coin.” Nova Health Sys. v. Gandy, 416 F.3d 1149,

1159 (10th Cir. 2005) (citation omitted).

The Commissioner’s involvement in giving effect to the Act is evident

from the fact that, if the mDL program was functional for online verification,

some of the Plaintiffs’ injuries here would be lessened (if not entirely

remedied). See Reply Br. at 12 (“[T]he Commissioner is wrong when he asserts

that all of Plaintiffs’ constitutional injuries derive from an ‘inability to access

13 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 31

material without engaging in any verification.’” (quoting Resp. Br. at 40)). The

Defendants argue that “none of the [Plaintiffs’] alleged injuries are ones that

would be redressed if the mDL Program had the functionality to verify age over

the internet.” Resp. Br. at 40 n.9. But that is not so. In their response to the

Defendant’s motion to dismiss, the Plaintiffs noted several ways in which the

various plaintiffs here have been injured by the lack of a functional compliance

mechanism: “Pfeuffer’s and Dawson’s injuries include the inability to protect

themselves from liability given the Act’s vagueness and ambiguities, and the

technological impossibility of adopting their own ‘reasonable age verification

methods’ within platforms that they do not control.” App. at 199 n.2. They also

argued that the “Plaintiffs’ injuries are, in substantial part, caused by this

unconstrained prior restraint on speech that the Commissioner is tasked with

constraining,” and by his “provision of an mDL program that lacks the

technological functionality to be of any use to the Plaintiffs seeking digital

passage online.” Id. at 201 (emphasis omitted). And they argued that this injury

would be “redressed by an injunction precluding the Commissioner’s

administration of an inadequate program absent substantial improvements that

may be negotiated as the case advances.” Id. (emphasis added). So some of the

Plaintiffs’ injuries would at least be mitigated by an mDL program with online

functionality—those Plaintiffs could rely on the state-approved method and

would not have to risk navigating the vagueness and technical problems posed

by the other methods.

14 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 32

True, the Plaintiffs struggled to articulate their requested injunctive relief

against the Commissioner in their complaint: there, the Plaintiffs requested an

injunction “enjoining the Commissioner . . . from permitting its data files to be

downloaded for use by the mDL Program.” Id. at 37. And in the complaint’s

Prayer for Relief, the Plaintiffs requested the district court more generally to

“[p]reliminarily and permanently enjoin Defendants, their officers, agents,

servants, employees, and attorneys, and those persons in active concert or

participation with them who receive actual notice of the injunction, from

enforcing the Act.” Id. at 40. On appeal, the Plaintiffs reassert the points they

raised in their motion-to-dismiss briefing, arguing that their injuries, “in part,

are caused by the Commissioner’s provision of an mDL program that lacks the

technological functionality to be of any use to the Plaintiffs seeking digital

passage online,” and would be “redressed by an injunction precluding the

Commissioner’s continued administration of the inadequate program absent

substantial improvements.” Op. Br. at 24 (italics added). They propose

declaratory relief and an injunction preventing the Commissioner’s “continued

participation [in the Act] barring improvements to allay the discrete

constitutional injury.” Reply Br. at 13 n.9.

Of course, the Plaintiffs’ preferred and ultimate goal is to strike down the

age-verification methods in § 78B-3-1001 as unconstitutional, rather than

improve them; they argue that the constitutionally infirm age-verification

methods are inseverable from the rest of the Act and that “absent such

15 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 33

provision[s]” the Act would be “an outright ban on the constitutionally

protected material at issue,” rendering the Act wholly unconstitutional. Op. Br.

at 24; see Reply Br. at 13 (“[T]he ‘digitized identification card’ provision is so

fundamental to the Verification Act as to be inseverable from the remainder.”).

But any inconsistencies in the Plaintiffs’ articulation of their requested

injunctive relief should not change our standing analysis—let’s remember that

we’re still at the motion-to-dismiss stage, and “at this early stage of the

proceeding the court should not assume it will be unable to fashion relief that

could remedy any constitutional violation found.” Petrella v. Brownback, 697

F.3d 1285, 1295 (10th Cir. 2012). Indeed, “[e]quitable relief can take many

forms.” Id. At this stage, “[t]he standing inquiry . . . asks only whether the

plaintiff has sufficiently alleged a cognizable injury, fairly traceable to the

challenged conduct that is likely to be redressed by a favorable judicial

decision.” Id. And here, the Plaintiffs clearly have.

The Plaintiffs’ request that the age-verification provisions of SB 287 be

declared unconstitutional would also satisfy the “case or controversy”

requirement because it would “settl[e] . . . some dispute which affects the

behavior of the defendant toward the plaintiff.” Nova Health Sys., 416 F.3d at

1159 (emphasis added) (cleaned up). Depending on the district court’s analysis

on remand, a declaration that those provisions were unconstitutional combined

with a suitable injunction would affect the Commissioner’s mDL program and

whether it is used for online verification in accordance with SB 287. Such a

16 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 34

declaration would also reduce the threat of private litigants suing the Plaintiffs

because, while not binding, “a lower federal court’s interpretation of federal

law . . . is highly persuasive, and a federal decision that [SB 287 violates the

First Amendment] would carry significant weight in [Utah] state courts.”

Consumer Data Indus., 678 F.3d at 906 n.3. And if we affirmed it, “we may

assume future parties that would sue under [SB 287] ‘will give full credence’ to

a decision by this court that the statute is unconstitutional.” Nova Health Sys.,

416 F.3d at 1163–64 (Briscoe, J., dissenting) (citation omitted). Even the

Defendants acknowledge that “a declaratory ruling that the Act is

unconstitutional might discourage private parties from bringing suits for

damages against FSC’s members”—their only quibble is that “this relief has no

relationship to the Commissioner.” Resp. Br. at 38. But as discussed above,

both injunctive and declaratory relief relate to the Commissioner’s providing a

program that requires significant “improvements to allay the discrete

The importance of declaratory and injunctive relief in this case is

buttressed by the fact that at least one individual plaintiff will never be able to

seek redress of his constitutional harms and “pursue state and federal

constitutional arguments in his . . . defense” to an enforcement action, because

he is the viewer or consumer of the targeted speech, not a speaker or publisher

who may be sued under the statute. See Whole Woman’s Health, 595 U.S. at 49.

As the Plaintiffs explain, “for the John Doe Plaintiff in this case, there is no

17 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 35

other hypothetical time, place, suit, or forum in which to assert his rights. As a

putative viewer rather than [a content creator or publisher], he is not subject to

an enforcement action under the Verification Act and therefore is not able to

violate it in order to obtain a forum in which to assert his constitutional claims

as defenses.” Op. Br. at 34.

Because some form of injunction combined with declaratory relief

against the Commissioner would either in part (by improving the age-

verification methods to ensure compliance was possible) or entirely (by striking

down an inseverable part of the Act) redress the Plaintiffs’ injuries, I conclude

that the Plaintiffs have shown sufficient causation and redressability for

Article III standing.

C. Ripeness

The Plaintiffs’ claims against the Commissioner are ripe. “The question

of whether a claim is ripe for review bears on a court’s subject matter

jurisdiction under the case or controversy clause of Article III of the United

States Constitution.” New Mexicans for Bill Richardson, 64 F.3d at 1498–99.

Because they both focus on the harm asserted, “[s]tanding and ripeness are

closely related.” Peck v. McCann, 43 F.4th 1116, 1133 (10th Cir. 2022)

(citation omitted). “But unlike standing, ripeness issues focus not on whether

the plaintiff was in fact harmed, but rather whether the harm asserted has

matured sufficiently to warrant judicial intervention.” Id. (cleaned up). “In

evaluating ripeness the central focus is on whether the case involves uncertain 18 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 36

or contingent future events that may not occur as anticipated, or indeed may not

occur at all.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1097

(10th Cir. 2006) (cleaned up).

The district court held that, “[e]ven assuming that Commissioner

Anderson’s connections to the mDL program were sufficient to invoke the Ex

parte Young exception, Plaintiffs[’] claims against Commissioner Anderson are

not ripe.” Free Speech Coal., 685 F. Supp. 3d at 1305. I disagree. Here, as in

Walker, “[t]he ripeness challenge fails . . . because the Plaintiffs’ alleged injury

is already occurring.” 450 F.3d at 1098. FSC and the other individual plaintiffs

have amply demonstrated that their injury is already occurring—and is

exacerbated by—the Commissioner’s failure to provide a digitized

identification card that functions as contemplated by the Act. See § II(A),

supra. See generally App. at 15–19 (describing injuries to plaintiffs caused by

SB 287 and the state’s failure to provide functioning age-verification

mechanisms). That the Plaintiffs’ injuries are greater because of the digitized

identification card’s lack of online functionality does not defeat the Plaintiffs’

claims; rather, it highlights the traceability and redressability of some of their

injuries to the Commissioner. Because these injuries are already occurring and

are not dependent on “uncertain or contingent future events,” Walker, 450 F.3d

at 1097, the Plaintiffs are already undergoing considerable hardship, see Peck,

43 F.4th at 1133.

19 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 37

Finally, this issue is fit for judicial resolution because the facial

challenge to SB 287’s constitutionality may be decided today. See id. Let’s not

forget that this case presents a First Amendment challenge, where “ripeness

inquiries are relaxed . . . due to the chilling effect that potentially

unconstitutional burdens on free speech may occasion.” Id. at 1133–34 (cleaned

up). Indeed, “ripeness is seldom an obstacle to a pre-enforcement challenge in

this posture, where the plaintiff faces a ‘credible threat’ of enforcement, and

‘should not be required to await and undergo [enforcement] as the sole means

of seeking relief.’” Consumer Data Indus., 678 F.3d at 907 (alteration in

original) (citation omitted). SB 287 creates a “credible threat” of liability, and

the Plaintiffs should “not be required to await and undergo [a civil suit]” to

seek relief. See id. As discussed above, many of the Plaintiffs voiced fears that

they could not, or did not know how to, comply with SB 287, and so have

changed their behavior to avoid civil liability.

In sum, the Plaintiffs’ claims against the Commissioner are ripe because

the Plaintiffs’ injuries are already occurring and are exacerbated by the mDL

program’s lack of online functionality, for which the Commissioner is

responsible.

***

Because the Commissioner has a sufficient connection with SB 287’s

enforcement to meet the Ex parte Young exception to sovereign immunity, and

20 Appellate Case: 23-4104 Document: 59-1 Date Filed: 10/01/2024 Page: 38

because the Plaintiffs have Article III standing and their claims are ripe, I

respectfully dissent.