COLUMBUS, Oh. — If there's one thing that's been firmly established about the Internet, it's that thanks to the Commerce Clause of the U.S. Constitution, states can't pass laws that attempt to censor or restrict the content available on the World Wide Web.
Apparently, however, that message didn't get through to the Ohio legislature, since in 2003, it added Sec. 2907.31 of the Revised Code, which in part makes it a crime to "sell, deliver, furnish, provide, exhibit, rent, or present ... material or a performance to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles in violation of this section by means of an electronic method of remotely transmitting information if the person knows or has reason to believe that the person receiving the information is a juvenile or the group of persons receiving the information are juveniles."
Even worse, it's a violation if "[t]he method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information."
That "electronic method of remotely transmitting information" is best known as the Internet, and there currently exists no technology which can prevent juveniles in Ohio from receiving any freely distributed Web page, even pages that contain sexually explicit content - or as the Ohio laws calls it, "matter harmful to juveniles."
The case, now captioned American Booksellers Foundation for Free Expression v. Cordray, was filed in 2002, and the district court at that time granted a preliminary injunction against the law's application because the statute's definition of "harmful to minors" didn't meet U.S. Supreme Court guidelines. The Ohio legislature amended the statute as noted above, but that didn't fix either the vagueness nor the Commerce Clause problems, so in 2003, the parties went back to court with motions from both sides for summary judgment since there were few disputes as to the facts of the case.
This time, the district court granted parts of each side's motions - but didn't bother to file its decision formally until 2007. The court concluded that Ohio's revised "harmful to juveniles" definition now met the Supreme Court's standards under Miller v. California and Ginsburg v. New York and so rejected the Plaintiffs' vagueness challenge. It also rejected their challenge under the Commerce Clause, for reasons not disclosed in the Sixth Circuit opinion.
"The district court said that it wouldn't consider the Commerce Clause aspect because with respect to certain types of constitutional challenges, you can't challenge a statute on its face if it has some constitutional applications," said Michael A. Bamberger, the primary attorney for the Plaintiffs. "And the court held that that doctrine applied to the dormant Commerce Clause, but it's hardly ever been applied in this context to the Commerce Clause, and it doesn't make any sense, because by definition, when you challenge under the dormant Commerce Clause, there will always be a constitutional application which is to say to transactions solely within the state of Ohio, and if that doctrine would apply, then you could never bring a facial dormant Commerce Clause claim. And in fact there have been many such claims, and in fact similar state statutes have been held unconstitutional under the dormant Commerce Clause."
Indeed, laws similar to Ohio's have been held unconstitutional and struck down in Vermont, New York, Virginia, South Carolina, New Mexico and Arizona.
However, even without considering the Commerce Clause, the lower court ruled that the law did violate the First Amendment, because the statute failed strict scrutiny and because its Internet provisions were unconstitutionally overbroad.
Both sides appealed once again, but in arguing for the legislation, the Defendants - and particularly Richard Cordray, Ohio's current attorney general - maintained that the law was constitutional because the statute "does not regulate Web communications, other than such personally directed devices as instant messaging or person-to-person email."
"It's really not clear what he's saying," Bamberger said. "One of the things he's saying is, the law doesn't apply to certain parts of the Internet. He says it applies to emails and it applies to what he calls 'private chat rooms,' which is a concept that's new to me, but that it doesn't apply to the rest of the Internet. And he says that's what the legislature meant and that's what the language says, although I have difficulty finding that in the language, which is broad. And the three-judge panel of the federal court of appeals, it didn't appear that clear to them either, apparently, because they have referred it to the Supreme Court of Ohio."
"The problem is, it's not what the statute says," added H. Louis Sirkin, local counsel for the Plaintiffs. "There's not a letter [from the Attorney General]; it's just a representation during oral argument and it really wouldn't be binding on a future attorney general, and if they [the Defendants] really think it can be narrowed, then they should either recommend it to the Ohio legislature or let it be."
The Sixth Circuit, however, took a different course. After noting the differences between the parties regarding the scope of the existing law, the panel felt it best to leave the interpretation up to the Ohio judiciary.
"Thus, rather than speculate, the better course, in our view, is to provide the Supreme Court of Ohio with the opportunity to interpret the scope of §2907.31(D)(2)'s exemptions and the statute's coverage," wrote Judge Boyce F. Martin, Jr. for the Sixth Circuit panel. "Given our lack of authoritative state-court construction and because the statute appears susceptible to the narrowing construction the Attorney General puts forth, we certify, sua sponte, the questions that follow to the Supreme Court of Ohio."
What the Sixth Circuit did, therefore, was to refer the following questions to the Ohio Supreme Court:
"(1) Is the Attorney General correct in construing O.R.C. [Ohio Revised Code] §2907.31(D) to limit the scope of §2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?"; and,
"(2) Is the Attorney General correct in construing O.R.C. §2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?"
A plain reading of the statute, though, would seem to indicate that no such narrowing construction is possible, making it look as if the Sixth Circuit is simply passing the buck rather than following its constitutional mandate to void the law for overbreadth and/or vagueness.
"I don't know whether they're passing the buck," Bamberger agreed, "but the language says what it says. But on the other hand, the Attorney General of the State of Ohio, representing the Attorney General's office as well as all of the district attorneys in the state of Ohio, have taken the position that this is what it was meant to mean, whatever it says, and the court has to give that some credence."
Sirkin had a slightly different view.
"The inconsistency of this certification that was issued to the Ohio Supreme Court to answer the question is really - I mean, if there's two interpretations, that means it's vague. So it's going up to the [Ohio Supreme] Court to interpret it, and it's really not supposed to do that; it should be a legislative function and the federal court should have struck that portion of the statute."
The Ohio Supreme Court is under no obligation to answer the Sixth Circuit's questions, but none of the attorneys were sure what the Sixth Circuit would do if Ohio refuses. The most likely possibilities in that case are A) the Sixth Circuit would uphold the existing law based on the Attorney General's representations, which would nearly guarantee an appeal by the Plaintiffs to the U.S. Supreme Court (which likewise is not under an obligation to accept certiorari); B) the Sixth Circuit could void the existing law for vagueness, which likely would result in the Ohio legislature revising the law in conformance with the limiting interpretation stated by the Attorney General and apparently approved by the Sixth Circuit; or C) the Sixth Circuit could void the existing law as a violation of the Commerce Clause, as the Plaintiffs originally contended.
One thing is most likely, however: If Ohio throws it back into the Sixth Circuit's lap, the panel, unlike the district court, won't take three years to issue its opinion.