Case and Court
- Am. Booksellers Found. for Free Expression v. Strickland (6th Cir.), on certified questions to Ohio Supreme Court as Cordray v. Am. Booksellers Found. for Free Expression.
In our previous coverage of state efforts to regulate the internet, we discussed the American Booksellers Foundation for Free Expression’s challenge to Ohio’s O.R.C. § 2907.31, which prohibits providing material and performances with certain sexual content to juveniles, while exempting material and performances disseminated to a juvenile by a “method of mass distribution [which] does not provide the [sender] the ability to prevent a particular recipient from receiving the information.” O.R.C. § 2907.31(D)(2)(b).
The Sixth Circuit certified two questions regarding the appropriate interpretation of the statute to the Ohio Supreme Court, which heard oral argument in the case on Oct. 20, 2009. You can view video of the oral argument from the Supreme Court of Ohio’s website:
If you’re not familiar with the video coverage of oral arguments at the Supreme Court of Ohio, permit me a brief aside to say how impressive it is because the video:
- is already available online the day after oral argument;
- was edited to contain close-ups of the various people speaking, utilizing multiple camera angles; and
- contains overlaid graphics providing the name of the Justice or attorney speaking.
Ohio’s video coverage of its Supreme Court oral arguments should be a model for all other state and federal appellate courts. I only wish they also made it easy to embed the video here, as clicking on the image above will take you away from this page.
The video of the oral argument is also substantively interesting as Ohio Solicitor General, Benjamin Mizer, and attorney for ABFFE, Richard M. Zuckerman, were both excellent advocates for their respective clients under extensive questioning from the Justices.
The Justices raised numerous hypothetical scenarios where an adult might communicate content online that would be protected speech in an adult-to-adult communication but that could run afoul of O.R.C. § 2907.31 and be deemed harmful to juveniles. They wanted counsel for each side to apply the law to these scenarios, in part to see if the law is so vague that one cannot tell what behavior it prohibits.
The statute prohibits dissemination of material harmful to juveniles if “the person knows or has reason to believe that the person receiving the information is a juvenile” and the person uses a method of distribution that provides “the person the ability to prevent a particular recipient from receiving the information.” Thus, since email is the sort of communication tool that gives one the ability to prevent someone from receiving a person-to-person email by not including their email address and since instant messaging tools give one the ability to prevent someone from receiving a person-to-person instant message by not directing it to their specific username, these are methods of distribution within the purview of the statute and an adult that knowingly sends material harmful to juveniles directly to a juvenile’s email address or instant message account will be within its scope.
The more difficult hypothetical cases considered technologies of mass distribution such as chat rooms, email listservs, and websites generally.
To take an example not discussed at oral argument, many websites allow users to post content: images to flickr, videos to YouTube, all manner of content to Facebook, etc. Many such sites provide users with the option of making such content public or limiting it to a select group of “friends.” So, imagine such a site that permits material harmful to juveniles (the terms of service of the above well-known sites would likely forbid it) and one must wonder whether posting such material publicly would fall within the scope of this statute on the basis that the ability to restrict its dissemination to only one’s “friends” (or some other select group of individuals) constitutes “the ability to prevent a particular recipient from receiving the information.” If so, then an adult video-sharing site that enabled users to restrict who could view uploaded videos would make criminals (in Ohio) out of every user that publicly posted material that met the definition of material “harmful to juveniles.”
One might assume that listservs are safely outside the scope of the statute, because one cannot control the recipients of email messages sent to lists, as the messages are automatically distributed to all subscribers. However, in oral argument the example of a listserv set up for a little league baseball team or similar children’s group was discussed and the Solicitor General argued that sending material harmful to juveniles to such a list, knowing it to be a list intended for a little league team, would fall within the statute. Perhaps this is the right result, but it seems to read the defense in (D)(2)(b) that “the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information” out of the statute and raises the worry that the State of Ohio also has other instances in mind where that defense is irrelevant, despite those instances not being clear on the face of the statute.
Chat room examples were also discussed, but the focus of this discussion seemed misplaced, because the difficult question is whether “the ability” itself to narrow a chat from the full public chat room down to a more private chat group or one-to-one communication means that any communication “harmful to juveniles” in the large public chat room is prohibited, simply because of that “ability” to engage in more limited chats. That seems a plausible reading of the statute, but the discussion of these examples never zeroed in on how to interpret “ability” in O.R.C. § 2907.31(D)(2)(b).
The Justices explored the potential points of vagueness in the statute, noting that the reading of the statute being proffered by the State of Ohio is not precisely the way the statute is written and musing that part of the reason the Sixth Circuit certified these questions to the Supreme Court of Ohio was due to the statute’s vagueness. On balance, however, I got the impression from the questions of a couple Justices that there was also a strong feeling that the statute was not vague, and that any uncertainty about its application in a particular case simply rested on matters of fact to be determined in such a case.
It is exceedingly difficult to predict outcomes from oral arguments, but the options suggested by ABFFE in its brief seem most likely: First, the Court might decide that writing a statute that isn’t vague is the responsibility of the Ohio legislature and not the Court’s and so the Court might simply decline the invitation. Second, the Court might try to “thread the needle,” as Justice Pfeifer phrased it, and provide the Sixth Circuit with a reading of the statute that eliminates any points of vagueness that the Court finds.
The ABFFE brief also provided proposed limiting language in answer to the certified questions which would limit the statute’s application to person-to-person communications. In a case where the State of Ohio argued that this was largely how they read the existing statute and where ABFFE argued that this was the only potentially constitutional reading of the statute, it would seem that the Court could adopt ABFFE’s proposal without either side really feeling like it lost.