The latest LGJ is a more in-depth look at the bill Jack Thompson was behind in Utah and some of its major flaws.
In the period of time between my writing that piece and its publication, GamePolitics has published another commentary on the issue. While I don’t necessarily disagree with the intent theory posed there, I believe the state would argue (and I’m certain Jack would argue) that by showing a pattern of ‘mistakes’ based on a series of stings, that the retailer has no intent to follow through on their advertised policy. In the alternative, I could see the argument being made that while most false advertising is a specific intent offense, this type of goodwill based advertising is not given that it’s not targeted to a specific event or sale but rather to artificially boost the store’s reputation at large. I do think the noted ‘fallacy’ of tying the advertising to subsequent conduct isn’t a fallacy insomuch as it is valid if the court wanted to accept this offense as one of strict liability, which is what it appears the goal of the provision is. This also completely invalidates the concept of intent, as strict liability requires no intent only that the conduct occurred. It would be an interesting new realm, as this would be a sort of self imposed strict liability in that it only applies to the extent the seller represents that they act in this manner.
Regardless of the outcomes of the attempts to invalidate the statute legally, my main objective in my column was to demonstrate the fact that from a practical standpoint, the statute can be completely avoided without much difficulty.
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