COLUMBUS, Ohio—The state of Ohio has just scored a minor victory in its attempts to regulate adult material on the internet, with the Ohio Supreme Court on Wednesday putting its stamp of approval on a scaled-back interpretation of the 2004 law's reach.
At issue was Ohio Revised Code (R.C.) 2907.31, which attempts to regulate material harmful to juveniles, which R.C. 2907.01(E) defines as "that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form" which also violates a version of the Miller v. California obscenity test modified for minors.
Another section of the law, R.C. 2907.31(D), attempts to apply the "harmful to juveniles" restriction to communications over the Internet, cell phones and other electronic media by criminalizing anyone who "directly sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents or directly offers or agrees to sell, deliver, furnish, disseminate, 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." However, another clause of the statute exempts a provider who has "inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile," or who uses a method of distribution "which does not provide the person the ability to prevent a particular recipient from receiving the information."
R.C. 2907.31 was itself a revision of a previous statute that had attempted to accomplish a similar purpose, R.C. 2907.01, and in 2002, a group of free speech advocates, including the American Booksellers Foundation for Free Expression, the Ohio Newspaper Association and prominent psychologist Dr. Marty Klein, sued to prevent the communication restrictions in that earlier version of the law from going into effect, later amending their complaint to encompass the revised statute.
The parties to the suit had filed cross-motions for summary judgment with the U.S. District Court, and in 2007, that court permanently enjoined enforcement of the statute, ruling that the challenged section was "overbroad in violation of the First Amendment," having failed the strict scrutiny test for not being narrowly tailored to achieve its goal. In appealing the overbreadth ruling to the Sixth Circuit U.S. Court of Appeals, that court questioned whether the statute was susceptible to a construction which might avoid the need for a ruling on the statute's constitutional merits (or lack thereof). The issue centered on representations made by Ohio's Attorney General Richard Cordray, who stated that his office would limit the application of the statute only to "personally directed devices such as instant messaging, person-to-person e-mails and private chat rooms," but not to "material posted on generally accessible websites and in public chat rooms." The Sixth Circuit then asked the state Supreme Court to rule whether the attorney general's limiting construction of the statute was a valid interpretation of the law, and in Wednesday's opinion, the state high court ruled that it was.
"Of particular significance... is a sentence in the Attorney General's brief in which he claims that R.C. 2907.31(D)(2) 'clarifies that a person who does not "know or have reason to believe that a particular recipient of the information or offer is a juvenile" does not violate the statute upon transmitting harmful-to-juveniles material, even if a minor receives it'," wrote Justice Paul Pfeifer for the unanimous court. "We conclude that the scope of R.C. 2907.31(D) is limited to electronic communications that can be personally directed, because otherwise the sender of matter harmful to juveniles cannot know or have reason to believe that a particular recipient is a juvenile."
Michael A. Bamberger, who represents some of the plaintiffs in the underlying lawsuit, was generally pleased with the ruling, but concerned that the high court's opinion failed to deal with specific definitional issues that would arise were the law to be put into effect.
"We are pleased that the Ohio Supreme Court accepted the Ohio Attorney General's belated recognition that the statute was too broad, and should be construed narrowly," Bamberger said in a written statement to AVN. "The decision makes clear that persons who post non-obscene material on generally-accessible websites and in public chat rooms cannot be prosecuted based on an allegation that the material is harmful to minors."
"But the decision leaves many questions unanswered," he added. "What is a 'generally accessible website'? If a newspaper charges a fee for using its website, does that mean that it is not 'generally accessible'? And does that mean that an editor or reporter who posts non-obscene material on a newspaper's website can be prosecuted? If a university alumni website is accessible only to alumni, is the website 'generally accessible'? What makes a chat room a 'public chat room' rather than a 'private chat room'?"
"The decision is a step in the right direction," Bamberger concluded, "but still fails to make sure that the Ohio statute does not infringe free speech."
But even if the federal courts are satisfied with Ohio's response to the Sixth Circuit's questions, there remains the core issue of whether state law can be used to regulate content on the World Wide Web.
"There are a number of cases that deal with the 'dormant Commerce Clause'," noted First Amendment attorney Clyde DeWitt. "The dormant Commerce Clause doctrine says that if something is inherently interstate activity, then Congress, under the Commerce Clause, has the exclusive power to regulate it unless they expressly delegate it to the states, and they haven't done that in the case of internet content. The only instance that I know of where they've done that is the CAN-SPAM Act; states can apply their laws of general application like fraud to mass-distributed e-mails."
"I think this statute needs one more line in it," agreed First Amendment attorney Marc Randazza, "and that is a restriction on this conduct to where the speaker and the receiver are both in Ohio. Even then, it might have some problems, but from a purely federal constitutional level, without that, how can it be enforced against anyone outside Ohio's borders?"
But what would happen if the Sixth Circuit vacates the injunction and the law goes into effect?
"Look at the mess we've got here," Randazza assessed. 'You've got to look at what's suitable for juveniles in Ohio, but also somebody else, who knows where they are, and what's acceptable in that community—and don't forget, the transmitter can be a juvenile as well. If I've got a kid who comes home from his sex education class in some civilized place, and then transmits to the deepest red of Ohio, sends a message over Facebook to a friend of his, saying, 'Hey, today we learned where the clitoris is'—if somebody came from their high school health class and transmitted that information to another juvenile they know, it doesn't have to be some kind of salacious content that we'd all agree we'd like to be controlling if my kid gets that—this could very easily be an interstate discussion between two minors over something educational in nature, but the way this statute is written, you would judge it by the kind of community where Citizens for Community Values exists. Are we going to look at where they have a base of power, what's acceptable in that community?"
Citizens for Community Values is based in Cincinnati, Ohio.
"What I'm worried about is, you have laws like this that can apply to minors communicating with other minors," Randazza continued. "You know, I'll bet my law license that some kid is going to wind up dragged into some hysterical court case some day because he sent his girlfriend a picture of his dick, or his girlfriend sent a picture of her tits to him, and next thing you know, we're going to have some other law named after a dead kid and they're all going to conflate, and some kid's going to wind up being registered as a sex offender because of this. I'd just like to see a psychological evaluation of the people who feel that these laws are so necessary, because they've got to be fighting pedophilic demons that are inside themselves. I wouldn't even think you'd need a law like this."
According to an Associated Press article, the Ohio Supreme Court's clarification of the scope of R.C. 2907.31 will now be used by the Sixth Circuit Court of Appeals to decide whether to uphold the preliminary injunction granted to the plaintiffs by the district court, which might signal an end to the case altogether, or whether the case will have to be further litigated in federal court to reach a determination on both the First Amendment and Commerce Clause aspects of the law.