Case and Court:
American Booksellers Foundation For Free Expression v. Strickland, No. 07-4375 (6th Cir. Apr. 15, 2010).
See our prior coverage of this case in State Efforts to Regulate the Internet, coverage of the oral argument before the Supreme Court of Ohio, and when the Ohio Supreme Court adopted a narrow reading of this anti-dissemination statute.
On April 15, 2010, the Sixth Circuit, now working with the benefit of the Ohio Supreme Court’s narrow reading of Ohio’s anti-dissemination statute, upheld the constitutionality of Ohio Revised Code § 2907.31(D), reversing the district court.
You’ll recall that the statute 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). On certified questions from the Sixth Circuit, the Ohio Supreme 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. With the benefit of this narrow construction, the Sixth Circuit found that the statute was neither overbroad nor vague in violation of the First Amendment. The Court further held that the statute did not violate the dormant Commerce Clause as it it did not affect out-of-state actors differently than in-state actors.
Both sides are apparently declaring victory, and so long as the statute really is only applied narrowly to personally-directed communications, this is a fine result. However, it has been somewhat unsatisfying to watch both the Ohio Supreme Court and the Sixth Circuit dodge the most difficult questions posed by the broadly-worded portions of this statute. The Sixth Circuit merely tells us that
“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.”
The problem is not that future courts that will have to determine how to apply this statute to new technologies, but rather that it remains less than clear how it applies to existing technologies, such as listservs, chat rooms or other web services where one arguably has the “ability” to limit one’s communications to a select group of individuals depending upon how “ability” is interpreted. Both the Ohio Supreme Court and the Sixth Circuit had the opportunity to definitively foreclose such applications of the statute by overzealous prosecutors, but failed to do so. I certainly think the better argument going forward is that the statute must be narrowly construed, but with these less-than-comprehensive rulings, there remains the slightest room for a prosecutor to attempt an overly broad reading in some remaining contexts, and then we will have to revisit these same arguments all over again.
- William Hershey, Anti-porn law ruled OK by court, Dayton Daily News (Apr. 16, 2010).