An Ohio federal court enjoined (this week) an Ohio statute prohibiting dissemination of materials which is harmful to minors.  (American Booksellers Foundation for Free Expression v. Strickland, 2007 US Dist. Lexis 70605 – access a copy of the order here).  The statute raises a slew of difficult issues which will likely be revisited by the Sixth Circuit.  The matter has been ongoing since at least 2002, and is likely far from over.

The Statute 

The court in 2002 issued an injunction which the state appealed.  During the pendency of the appeal, the statute was revised - the court considered plaintiffs' challenges to the revised statute. 

The basics of the current statute are as follows:  Section 2901 prohibits the dissemination (sale, delivery, rental, etc.) of material that is “harmful to juveniles”.  This last phrase is further defined using magic “prurient interest” language from several obscenity cases.  The statute also contains so-called “internet provisions”) which provide that (1) a person engages in the sale or delivery (etc.) of this harmful content if he or she has “reason to believe that the person receiving the information is a juvenile or the group of persons receiving the information are juveniles” and (2) if the person has “inadequate information” or lacks the “ability” to prevent a person from receiving a distribution, then a person who remotely transmits the information does not violate the statute. 

First Amendment Analysis 

First plaintiffs argued that the standard used to determine what material could be considered “harmful to minors” is overbroad and could reach speech between consenting adults.  The court rejects this argument, finding that the statute appropriately incorporates the test for obscenity from Miller. 

The court next looks to plaintiffs' arguments that the internet/mass-dissemination provisions are overly broad, looking favorably to cases which according to it find the “knowing” standard in this context inappropriate: 

Section 2907.31(D)(1) would act as a ban to that segment of speech between adults which is protected by the First Amendment, even though that speech is unprotected as to juveniles. Defendants in the instant case assert that the limiting provisions of § 2907.31(D)(2) address the objections in Reno, because a person is not in violation of § 2907.31(D)(1) when remotely transmitting information by means of a method of mass distribution if "a person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile" or "the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information." This Court is not persuaded by Defendants' argument. Although § 2907.31(D)(2) may act to limit the scope of this statute, § 2907.31(D)(1) is still overbroad and infringes on constitutionally protected adult-adult speech. The limiting provisions do not extend to one-to-one methods of communication in places such as chat rooms. According to the Court in Reno, every user of the internet has reason to know that some participants in chat rooms are minors. An adult would have no way of ensuring that her communications in a chat room would be between and among other adults alone. There is simply no means, under existing technology, to restrict conversations in a chat room to adults, only. Consequently, an adult sending a one-to-one message which is unprotected as to minors under the Miller-Ginsberg standard, but protected as to adults under the standard in Miller, will be liable under § 2907.31(D)(1). Therefore, the provision is overbroad.

The court also (i) finds that the statute is not narrowly drawn to address the admittedly compelling interest of preventing minors from being lured over the internet and (ii) considers and rejects plaintiffs vagueness arguments. 

Commerce Clause 

Plaintiffs also raised a commerce clause (dormant commerce clause) challenge to the statute.  The court struggles with how the facial vs. as applied challenge fits in to the commerce clause analysis.  The court looked to a somewhat analogous case from New York which struck down a similar statute on dormant commerce clause grounds (Pataki).  However, the court also looked to later cases such as Heckel and concluded there was no violation: 

In light of recent decisions, upholding state statutes prohibiting spam and other fraud perpetrated via electronic mail, and the absence of authority to demonstrate preemption of internet regulation by the Federal government, this Court cannot adopt Pataki's reasoning that the transient nature of the internet renders all state regulation of the internet a violation of the commerce clause.

My Take: is that I was not terribly persuaded by the court’s analysis.  The court finds that the reach of the statute content-wise is not problematic from a First Amendment standpoint; the court’s issue is with the broad reach of the mass dissemination provisions.  My read of Reno and my recollection of those cases is that they may find the mass dissemination provisions in the Ohio statute sufficient to safeguard First Amendment interests.  The statute incorporates two exceptions, either of which preclude a violation of the mass dissemination prong (inadequate information that “a particular recipient . . . is juvenile” or the method of distribution does not allow the sender to prevent “a particular recipient from receiving the information).  These are two good exceptions, which in my read differentiate the statute from other minor-content statutes and address the Court's concerns in Reno.  Expect to see a potentially different result (or at least reasoning) from the Sixth Circuit.

(Disclaimer:  I’m basing my opinion on my vague recollection of the cases which I’ve not looked at in a while.)