Cyberlaw Cases » Indecent Speech and Censorship

“Medical Justice” promotes legally and ethically suspect doctor-patient copyright agreement

Jason — Tue, 01 Jun 2010 01:01:40 +0000

In today’s New York Times, there is an excellent article on the ongoing battle between companies and consumers over online criticism. In addition to discussing the various lawsuits that have been brought, the article also noted the following:

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

“I, like everyone else, like to hear two sides of the story,” he said. “The problem is that physicians are foreclosed from ever responding because of state and federal privacy laws. In the rare circumstance that a posting is false, fictional or fraudulent, the doctor now has the tool to get that post taken down.”

This so-called “agreement” strikes me as both legally and ethically suspect. Not only does copyright law generally require written assignments of copyright to be for some kind of payment (what is the payment here? The medical treatment? I thought that was what health insurance and co-pays were for?) but unless it is a work-for hire or some other kind of ongoing employment relationship, you generally can’t force people to assign their copyright in a web posting before it is written.

Moreover, such an agreement seems unethical under the American Medical Association Ethics Code. AMA Ethics Opinion 8.03 states:

Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. For a physician to unnecessarily hospitalize a patient, prescribe a drug, or conduct diagnostic tests for the physician’s financial benefit is unethical. If a conflict develops between the physician’s financial interest and the physician’s responsibilities to the patient, the conflict must be resolved to the patient’s benefit.

Since the main concern of Medical Justice appears to be preventing harm to the physician’s reputation (and thus financial interest), forcing patients to assign away their copyrights in exchange for medical care strikes me as close if not over this line. It certainly is not putting patients first. When a patient goes to see a doctor, they are often anxious, in pain, or worried and thus in a very psychologically vulnerable position, or what the law often calls a position of “duress” where they will often sign documents without giving them proper consideration. This hardly seems to me to be a fair time to demand they assign some unknown number of future copyrights to their doctor; instead it feels like a huge power grab by the physician.

Moreover, as Dr. Segal states in the article, these so-called “assignments” of copyright become a “tool” to take posts down from the Web. One can surmise that he intends for these doctors to invoke the notice-and-takedown provisions of Section 512 of the DMCA as a convenient way to censor criticism and cajole websites like Yelp! to remove the postings. However, this too strikes me as unethical and a potential abuse of the DMCA system. The DMCA takedown system was meant to allow copyright owners whose works were being posted online by others and costing them sales of copyrighted goods (e.g. movies and music) to enjoy an expedited process for stopping infringement and limiting economic harm to their content.

Here, it is clear that these web postings have no economic value as content to the physicians — rather they are, at best, potentially harmful to their reputations (note again, though, that this would likely be a violation of their ethical duty either way).

I should note that much of this is speculation on my part. I have not seen this so-called agreement and have not heard of any doctor taking things off the web based on it; but it does strike me as ironic that a group like Medical Justice, which proclaims its mission as “relentlessly protecting physicians from frivolous lawsuits” would embrace and endorse potentially frivolous, unethical, and abusive legal documents and actions to further its goals.

Sixth Circuit Upholds Ohio’s Anti-dissemination Statute

Brian — Mon, 19 Apr 2010 13:39:09 +0000

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.

Ohio Supreme Court adopts narrow reading of anti-dissemination statute

Brian — Fri, 29 Jan 2010 00:00:55 +0000

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.

Ohio’s “harmful to juveniles” law vague in online context?

Brian — Thu, 22 Oct 2009 03:32:55 +0000

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.

State Efforts to Regulate the Internet

Brian — Mon, 31 Aug 2009 15:00:45 +0000

Cases and Courts:

The King’s English, Inc. v. Shurtleff (D. Utah), now Florence v. Shurtleff.
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.
Interactive Media Ent’mt & Gaming Ass’n v. Wingate (Ky. Ct. App.), on appeal to Kentucky Supreme Court as Commonwealth v. Interactive Media Ent’mt & Gaming Ass’n.

Background

States are struggling to determine whether and how they can regulate the internet in those areas where the federal government has either chosen not to regulate or where its efforts have proven unconstitutional. Congress has had significant difficulty regulating indecent and obscene material online and in keeping it away from minors. In particular, the prohibitions in the Communications Decency Act (”CDA”) against transmitting or displaying indecent or obscene material were held unconstitutional in Reno v. ACLU, 521 U.S. 844 (1997) and the Child Online Protection Act (”COPA”), which sought to criminalize posting material “harmful to minors” was also held unconstitutional in Ashcroft v. ACLU, 542 U.S. 656 (2004).

More recently Congress has sought to regulate internet gambling, enacting the Unlawful Internet Gambling Enforcement Act of 2006 (”UIGEA”), 31 U.S.C. §§ 5361-5367. The UIGEA, however, does not itself criminalize internet gambling, but instead prohibits the use of the internet to transfer funds in circumstances where doing so already violates another state, federal, or tribal law.

The failures of the CDA and COPA, and the narrow scope of the UIGEA have created a situation in which many states seek to address these issues of internet regulation themselves, although the states too run into constitutional difficulties.

State Efforts to Regulate Internet Dissemination of Material “Harmful to Minors”

Various states have passed laws seeking to limit the internet dissemination of material “harmful to minors.” Many of these state dissemination statutes have been invalidated by federal courts on the basis that the statutes were overbroad and not narrowly tailored, in violation of the First Amendment or on the basis that such statutes burdened interstate commerce in violation of the Commerce Clause. Am. Library Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (New York); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (New Mexico); Cyberspace Commc’ns, Inc. v. Engler, 142 F. Supp. 2d 827 (E.D. Mich. 2001) (Michigan); Bookfriends, Inc. v. Taft, 223 F. Supp. 2d 932 (S.D. Ohio 2002) (Ohio); Am. Booksellers Found. v. Dean, 342 F.3d 96 (2nd Cir. 2003) (Vermont); PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004) (Virginia); Southeast Booksellers Ass’n v. McMaster, 371 F. Supp. 2d 773 (D.S.C. 2005) (South Carolina).

In Miller v. California, the Supreme Court set out basic guidelines for the regulation of obscene, unprotected speech for adults. In order to be such, the speech must fall within the following guidelines:

(1) whether, the average person, applying contemporary community standards would find that the work appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work taken as a whole, lacks serious literary, artistic, political, or scientific value.¹

Prior to the ruling in Miller, the Supreme Court addressed the boundaries of protected speech and obscenity as to juveniles in Ginsberg v. New York, when it upheld a criminal statute which made it unlawful to sell material “harmful to minors” to persons under 17 years of age. The New York Statute defined material harmful to minors as follows:

that quality of…representation…of nudity…[which]…
(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and

(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and

(iii) is utterly without redeeming social importance for minors.²

In Reno and Ashcroft, the Supreme Court adopted the first two prongs of the Ginsberg test and the third prong of the Miller test, as an appropriate standard to define obscene speech as to minors. Thus the three-part Miller-Ginsberg test examines:

1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest of minors;
2) whether the work depicts or describes, in a patently offensive way to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, sexual conduct specifically defined by the applicable state law; and
3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Many of the state “harmful to minors” statutes have attempted to incorporate this test as the definition of what is considered “harmful to minors” and thus prohibited from internet dissemination to minors.

The difficulty for these statutes arises largely from the difficulty in identifying the age or geographic location of senders and recipients of communications over the internet. For example, in Reno, the CDA provided that a person was guilty of transmitting indecent messages to a minor if he did it “knowing” that the recipient was under 18 years old.³ The Supreme Court recognized that given the absence of viable age verification technology, the “knowing” standard would interfere with adult-adult communication, since an adult internet user would have to assume that one or more minors will likely view most content published online, and therefore the CDA would burden that speech.⁴

Some states, however, have successfully limited their approach and survived constitutional challenges. In Simmons v. State, the Florida Supreme Court upheld Florida’s dissemination statute because it applied only to electronic mail sent to a specific individual that a defendant actually knew was a minor or believed to be a minor and thus did not supress adult-to-adult speech.⁵

State dissemination statutes are content-based regulations of protected speech, and thus, unlike content-neutral regulations, receive “strict scrutiny” by the courts. Under a strict scrutiny analysis, the content-based regulation will be upheld only where the state demonstrates that the limitation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. This is a high standard that many state dissemination statutes have failed to satisfy.

Another primary source of challenges to these statutes is in the Commerce Clause. The Commerce Clause grants Congress the “power… to regulate commerce with foreign nations, and among the several states.” U.S. Const. Art. I, § 8, cl. 3. Implicit in this affirmative grant is the negative or “dormant” Commerce Clause–the principle that the states impermissibly intrude on this federal power when they enact laws that unduly burden interstate commerce. Under the Commerce Clause, a state statute is per se invalid when it directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests.⁶ Absent direct regulation or discrimination against interstate commerce, a state statute will be upheld “where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental… unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”⁷

State efforts to regulate material deemed “harmful to minors” continues in two pending cases, Florence v. Shurtleff, No. 05-00485 (D. Utah) and Am. Booksellers Found. for Free Expression v. Cordray, No. 07-4375 (6th Cir.), challenging Utah and Ohio dissemination laws respectively.

Florence v. Shurtleff (Utah)

While Utah’s Harmful to Minors Act, Utah Code Ann. § 76-10-1206 (2007) has prohibited persons from intentionally distributing to minors material that is deemed “harmful to minors” since the early 1970s, the Utah Legislature extended this prohibition to the internet in 2005.⁸

In 2006, the court entered a stipulated preliminary injunction barring enforcement of the statute and an order staying discovery pending the conclusion of the 2007 General Session of the Utah State Legislature, in which amendments to HB 260 were planned.⁹

The Plaintiffs, which originally consisted of fourteen individuals and entities who are content and access providers on the internet, have been narrowed to a group eight in a series of opinions addressing issues of standing.¹⁰ Discovery in the case is now underway.¹¹

While the most recent version of § 76-10-1206 contains exemptions for internet service providers and hosting companies, it would appear to still be phrased so as to apply simply to any “person” whether such content provider was based in the state of Utah or not. Several of the remaining plaintiffs are out-of-state content providers whose websites contain material that could be classified as “harmful to minors” under the statute. Also remaining among the plaintiffs is the named plaintiff, Florence, a Utah-based artist whose website displays his artwork, some of which depicts nude figures that he fears might be considered violative of the statute.

Although the briefing of the issues has not yet begun, the court is likely to revist some familiar ground, including both First Amendment and Commerce Clause-based challenges to the statute. As the statute does not appear limited, as the Florida statute in Simmons, to knowing transmission via email or instant message, it would be anomalous if it were not found unconstitutional.

Am. Booksellers Found. for Free Expression v. Cordray (Ohio)

Ohio’s O.R.C. § 2907.31 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 applicability of the law to matter communicated via the internet on websites, listservs, or in chat rooms was challenged by a group of publishers, distributors and retailers. The district court held the statute unconstitutional as applied to internet communication, finding it overbroad in violation of the First Amendment and enjoined the enforcement of the statute.¹²

On appeal to the Sixth Circuit, the Court decided, on its own initiative, to certify several questions of statutory interpretation to the Ohio Supreme Court.¹³ The Sixth Circuit has asked the Supreme Court of Ohio to answer these questions:

(1) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to limit the scope of § 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?
(2) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?

Notable about these certified questions is that Ohio’s Attorney General, in an effort to provide a constitutional reading of the statute, had himself urged these limiting constructions of the statute in briefing to the Sixth Circuit. While one might expect the plaintiffs to be pleased that even the state Attorney General appears to agree that certain broad–yet plausible–readings of the statute would be unconstitional, the plaintiffs are instead vexed by this strange ally, because, as the Sixth Circuit notes, the Attorney General has only propounded this view in this litigation, and not in an official opinion, and in any event “the Attorney General does not bind the state courts or local law enforcement authorities,” thus the Sixth Circuit believed it was “unable to accept [his] interpretation of the law as authoritative.”¹⁴

Further, since the Sixth Circuit certified these questions without input from the parties, the plaintiffs are concerned about some nuances that were lost in the shuffle. The certified questions speak of “generally accessible” websites without defining the term, they do not address mailing lists or “listservs”, and appear to distinguish between public and private chat rooms although such a distinction had not been a focus of the litigation previously.

The Ohio Supreme Court has accepted the certified questions,¹⁵ and Petitioner’s merits brief was submitted on Jul. 10, 2009 and Respondent’s merits brief was submitted on Aug. 10, 2009. A reply brief is due Sep. 21, 2009 and oral argument is scheduled for Oct. 20, 2009.¹⁶

The Ohio Supreme Court is thus faced with a daunting problem. Both of the parties before it agree, to a certain extent, that the statute the Court is being asked to consider is unconstitutional. The Attorney General urges the Court to adopt a limiting construction that, he argues, would render it constitutional, and the challengers primary argument is that the responsibility for writing a constitutional statute lies with Ohio’s General Assembly, not with the courts. This case presents another scenario where the states’ grasping with how they can constitutionally regulate internet communications has messy spillover consequences.

State Efforts to Regulate Internet Gambling

Commonwealth v. Interactive Media Ent’mt & Gaming Ass’n, No. 2009-000043 (Ky.).

States are also seeking to regulate other uses of the internet where the federal government has failed to act to their satisfaction.

On Sep. 18, 2008, a Franklin County Circuit Court in Kentucky ordered the “seizure” of 141 internet domain names as illegal “gambling device[s]” subject to forfeiture under KRS § 528.100. Commonwealth v. 141 Internet Domain Names, No. 08-CI-1409 (Franklin, Ky. Cir. Ct. Sep. 18, 2008). The order required the various registrars of the domains to immediately transfer the domain names to an account controlled by the Commonwealth of Kentucky. As an ex parte action brought against the domain names themselves, none of the owners of these domains or even the registrars were present for, or in many cases, given notice of, the initial forfeiture action. A subsequent hearing was held where various attorneys appeared on behalf of the domain owners and registrars and the court subsequently issued a more substantive opinion holding that it had jurisdiction over the in rem civil forfeiture claim, that the domain names were property subject to its in rem jurisdiction and possible civil forfeiture, that the domain names were “present in Kentucky” and thus subject to the Court’s jurisdiction, that the domain names were “gambling device[s]” subject to seizure under KRS § 528.100, and that the Court’s pre-notice ex parte seizure was consistent with due process. The Court wrote in summary,

We note that Opposing Groups and Lawyers argue any judicial interference of [sic] the Internet will create havoc. This doomsday argument does not ruffle the Court. The Internet, with all its benefits and advantages to modern day commerce and life, is still not above the law, whether on an international or municipal level. The challenge here is to reign in illegal activity and abuse of the Internet within the framework of our nation’s and Commonwealth’s existing common law norms and principles, until expressed guidelines from state and federal legislative bodies say otherwise. Commonwealth v. 141 Internet Domain Names, No. 08-CI-1409 (Franklin, Ky. Cir. Ct. Oct. 16, 2008).

The seizure order was appealed and struck down on Jan. 20, 2009 by the Kentucky Court of Appeals. Interactive Media Ent’mt & Gaming Ass’n v. Wingate, No. 2008-CA-002000 (Ky. Ct. App. 2009).

After the Court of Appeals struck down the seizure order, much of the news coverage and controversy surrounding the case seems to have disappeared, perhaps writing it off as some rare bit of over-reaching by a zealous local prosecutor and half-cocked judge. This would be a baseless assumption. The Court of Appeals decision was immediately appealed to the Kentucky Supreme Court and the Kentucky Secretary of the Justice and Public Safety Cabinet and the Governor himself, are still vigorously arguing for the merits of their approach and seeking to have the seizure order reinstated. Were the Kentucky Supreme Court to agree, we are merely in the calm before the real storm. Commentators also seem not to be troubled by the fact that the Kentucky Court of Appeals decision contained a dissent that held the domains were gambling devices subject to the statute. This is an issue about which careful judges can have a reasoned disagreement.

I am also unaware of any commentator that has noted in connection with the Kentucky appeal that the Court of Appeals of Washington has recently upheld its Gambling Act, Wash. Rev. Code § 9.46.240, which was amended in 2006 to prohibit the transmission of “gambling information” through “the internet” or “a telecommunications transmission system.” Rousso v. State, 204 P.3d 243 (Wash. Ct. App. 2009). In one of the only cases to interpret the UIGEA, the Court rejected a dormant Commerce Clause challenge and held that the State’s established interest in regulating gambling outweighed the burdens that the Gambling Act imposed on interstate and international commerce. While that case did not involve the additional drama of seizing domain names, the Court specifically rejected the analytic approach to the dormant Commerce Clause issues used in the “harmful to minors” cases such as Am. Library Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). The Court rejects

“the idea that the Internet, as a technological medium for transmitting information, is so novel that special rules apply to it, rendering unconstitutional any state law that subjects it to regulation. Put bluntly, this is a simplistic understanding of the technology at issue, which, at its core, performs precisely the same functions as the “telephone, telegraph, radio, [or] semaphore”—the transmission of information over distance—only does so more quickly, cheaply, and efficiently. This being so, we decline to follow those cases that view the Internet as entirely off-limits to state regulation. Rather, the question is whether the burdens on commerce that the regulation imposes are “clearly excessive” in relation to the interests that the regulation seeks to serve.”¹⁷

Another striking aspect of the Kentucky domain names case is the crass commercial motivation that Kentucky officials brazenly admit motivates the action. Gov. Beshear is reported to have said, “The owners and operators of these illegal sites… deprive the Commonwealth of millions of dollars in revenue.”¹⁸ Gov. Beshear also noted that “unlicensed internet gambling significantly undermines and threatens horseracing, Kentucky’s signature industry and a key tourism industry, by creating unregulated and untaxed competition.”¹⁹ J. Michael Brown, Secretary of the Justice and Public Safety Cabinet, is reported to have said, “Gov. Beshear has once again demonstrated that he is willing to take bold and innovative steps to protect Kentuckians and Kentucky’s legitimate businesses… Illegal Internet gambling poses a unique threat to our Commonwealth… For some of our vital and most venerable legitimate enterprises, it undermines their exemplary regulatory compliance and siphons away their constituents.”¹⁹ When states seek to control sexually explicit content that they deem “harmful to minors” one is typically safe in assuming that the state’s motivations are well-intentioned. In the internet gambling context, however, Kentucky officials seem all too willing to admit that they are engaged in a protectionist move designed to favor in-state businesses at the expense of out-of-state interests.

The Courts and the State legislatures will continue to grapple with whether and how to regulate the internet in these areas, making these interesting and important cases to watch.

Cyberlaw Cases » Indecent Speech and Censorship

“Medical Justice” promotes legally and ethically suspect doctor-patient copyright agreement

Sixth Circuit Upholds Ohio’s Anti-dissemination Statute

Case and Court:

See also:

Ohio Supreme Court adopts narrow reading of anti-dissemination statute

Case and Court

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Ohio’s “harmful to juveniles” law vague in online context?

Case and Court

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State Efforts to Regulate the Internet

Cases and Courts:

Background

State Efforts to Regulate Internet Dissemination of Material “Harmful to Minors”

Florence v. Shurtleff (Utah)

Am. Booksellers Found. for Free Expression v. Cordray (Ohio)

State Efforts to Regulate Internet Gambling

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Footnotes