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.
On January 27, 2010 the Ohio Supreme Court issued its opinion in American Booksellers Foundation for Free Expression v. Cordray. We previously wrote about the oral argument in this case, and discussed this case with other state efforts to regulate the internet.
To recap, this case involved the Sixth Circuit’s certification of questions of state law for the Ohio Supreme Court to consider, particularly whether the Ohio Attorney General was correct to construe narrowly Ohio’s R.C. 2907.31, an anti-dissemination statute aimed at restricting material deemed harmful to minors, such that its application be limited to personally directed communications via instant messaging, person-to-person e-mails, and private chat rooms and not to material posted on generally accessible websites and in public chat rooms.
The Ohio Supreme Court agreed with the Attorney General’s narrow reading. The American Booksellers Foundation for Free Expression had instead urged the court to find the statute unconstitutional and leave the task of writing a constitutional statute to the Ohio state legislature.
In a very short opinion the Ohio Supreme Court believed the statute could be salvaged because the Ohio Attorney General claims “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.” Thus, the Court limited the scope of the statute to personally-directed communications and not those communicated through generally accessible websites or public chatrooms where an individual cannot control whether a particular recipient is a juvenile.
Particularly disappointing in this opinion was the Court’s avoidance of the tough hypothetical questions asked at oral argument. At oral argument the parties discussed email listservs where a sender might have knowledge or reason to believe that juveniles were subscribers but because of the nature of listserv technology a sender would lack the ability to restrict recipients. Any time one had reason to believe at least one juvenile were subscribed to a list, one would be forced to restrict one’s otherwise permissible adult-to-adult communications via that list or run afoul of this statute. As I wrote before, this may be the right policy result, but it is not what the statute says in section (D)(2)(b). The court fails to discuss listservs at all, leaving this question unresolved.
However, recall that this case had an odd posture in which both parties were essentially arguing for this same narrow reading of the statute. With the above-mentioned exception of greater clarity on listservs, mailing lists, and perhaps USENET groups that ABFFE desired, both ABFFE and the Attorney General can claim something of a victory here. The case now returns to the Sixth Circuit and we will see how they apply the Ohio Supreme Court’s interpretation of this statute.
- James Nash, State high court upholds Net law to protect kids, The Columbus Dispatch (Jan. 28, 2010).
- Laura A. Bischoff, Anti-predator porn law doesn’t apply to web sites, Dayton Daily News (Jan. 28, 2010).
- Julie Carr Smyth, Ohio high court narrowly interprets anti-porn law, BusinessWeek (Jan. 27, 2010).