COLUMBUS, Ohio—Based on a Jan. 27 ruling by the Ohio Supreme Court, which accepted the Ohio Attorney General's representation that Ohio Revised Code (R.C.) 2907.31 would target only "personally directed" sexually explicit material considered "harmful to juveniles," the Sixth Circuit U.S. Court of Appeals has now vacated the permanent injunction issued by the trial court and remanded the case to U.S. District Judge Walter H. Rice with the direction to enter judgment for the defendant, Ohio Gov. Ted Strickland.
At issue were two clauses in the revised statute which targeted internet communications, making it a crime to "sell, deliver, furnish, disseminate, provide, exhibit, rent or present" material considered harmful to minors 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" unless the transmitter of the information doesn't know that a particular recipient is a juvenile, or the transmitter's "method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information" such as an opt-out link.
The trial court had determined that the internet provisions were overbroad and granted a permanent injunction against their enforcement. Both the plaintiffs—a diverse group including the American Booksellers Foundation for Free Expression, the Ohio Newspapers Association, the Video Software Dealers Association and psychologist Dr. Marty Klein—and the defendant appealed the court's decision. Before deciding the case, however, the Sixth Circuit solicited the opinion of the Ohio Supreme Court as to whether the Ohio attorney general's voluntary limitation on enforcement of the statute to "personally directed devices such as instant messaging, person-to-person emails, and private chat rooms" was a valid construction of the statutory language—a question Ohio's high court answered in the affirmative on Jan. 27.
"In light of the Ohio Supreme Court’s interpretation of the statute, the parties are now in general agreement that the statute is constitutional under both the First Amendment and the Commerce Clause," the Sixth Circuit panel wrote. " However, just because the parties agree that a statute is constitutional does not make it so. Instead, we must come to our own conclusion as to the constitutionality of section 2907.31(D)."
The opinion went on to state that, "Because it only applies to personally directed communications, the statute is not overbroad," and that due to both the statutory language and the attorney general's limiting interpretation, the statute violates neither the First Amendment nor the Constitution's Commerce Clause.
"Plaintiffs have one remaining concern," the Sixth Circuit noted. "They argue that the Ohio Supreme Court's decision could be interpreted in a way that would render the statute's application to emerging technology unclear and, therefore, unconstitutionally overbroad or vague. The court stated that '[t]he certified questions and the parties focus on particular types of electronic communications, namely, e-mail, instant messaging, private chat rooms, public chat rooms, and generally accessible websites.'... However, the final sentences of the Ohio Supreme Court's opinion serve only to take into account the rapid evolution of electronic communication. As such, in determining whether a new communication technology or device is covered under section 2907.31(D), future courts must determine whether that technology is more similar to ones which are personally directed, like an email, or those that are generally accessible, like postings on a public website. Thus, the Ohio Court's caveat does not diminish the particularized reach of section 2907.31(D) sufficient to render the statute unconstitutional."
After the Ohio Supreme Court's decision, plaintiffs' attorney Michael Bamberger was generally pleased with the court's ruling, though concerned about possible adverse judicial interpretations of such phrases as "generally-accessible websites" and the distinction between a private and a public chat room. Sadly, the Sixth Circuit's decision appears not to have addressed those issues, and they may form the grounds for future as-applied litigation regarding the Ohio statute.