American Bookseller’s Foundation for Free Expression v. Strickland: Sixth Circuit Upholds Ohio Anti-Pornography Statute

Digest Commentary First Amendment

American Bookseller’s Foundation for Free Expression v. Strickland, Nos. 07-4375/4376 (6th Cir., April 15, 2010)


On April 15, the United States Court of Appeals for the Sixth Circuit reversed an Ohio district court’s decision to enjoin the enforcement of an anti-pornography child protection statute, Ohio Revised Code § 2907.31(D)(1), which criminalizes displaying or disseminating harmful materials to juveniles.  The court held that as narrowly construed by the Supreme Court of Ohio, the statute does not violate either the First Amendment or the Commerce Clause of the Constitution.

The Sixth Circuit had previously certified the question as to the scope of the statute to the Ohio Supreme Court.  The Ohio Supreme Court issued its response on January 27, holding that the statute only applies to personally directed electronic communications, such as instant messages, private chat rooms, and person-to-person emails, and not to generally accessible communications on the Internet, like websites or public chat rooms.  In upholding the statute, the Sixth Circuit concluded that the “Internet provisions,” criminalizing the electronic transmission of harmful material to juveniles if the sender “knows or has reason to believe” the recipients to be juveniles, are not unconstitutionally overbroad.  Further, though the court held that the statute does not trigger strict scrutiny because it does not affect constitutionally protected speech among adults, it noted in dicta that it would survive even strict scrutiny because it was narrowly tailored to promote a compelling government interest.  The court also held that the statute does not violate the Commerce Clause.

Cyberlaw Cases provides an overview and history of the case through the Ohio Supreme Court’s January decision. The AP offers an overview of the Sixth Circuit’s decision.  Both the Ohio Attorney General Richard Cordray and groups affiliated with the coalition of publishers and Web site operators that challenged the constitutionality of the statute claimed some degree of victory after the ruling.

The Sixth Circuit decision comes after a protracted battle over the statute’s constitutionality. In 2002, the plaintiffs brought suit challenging the validity of an earlier version of the legislation, O.R.C. § 2907.01(E) & (J) (2002), which, at that time, broadly prohibited the dissemination or display of “materials harmful to juveniles.” The district court issued an injunction prohibiting the enforcement of the statute, finding that the definition of “materials harmful to juveniles” failed the obscenity for juveniles test as set forth in two Supreme Court cases, Miller v. California and Ginsberg v. New York.  While an appeal was pending before the Sixth Circuit, the Ohio General Assembly amended the statute in 2003. The amendments narrowed the scope of material “harmful to juveniles” and specified the circumstances where online dissemination would come within the scope of the statute’s “Internet provisions.” On remand, the district court found that the narrowed definition of “harmful to juveniles” conformed to the Miller-Ginsburg standard. However, the district court enjoined its enforcement as applied to Internet communications, concluding that the “Internet provisions” violated the First Amendment as overbroad and failed strict scrutiny. The district court also rejected the claim that the statute violated the Commerce Clause. Following oral argument on appeal, the Sixth Circuit certified two questions to the Ohio Supreme Court to determine if the scope of the statute was, as the Ohio Attorney General claimed, limited to personally-directed private online communications, or if it referred to general communications over the Internet.  The Ohio Supreme Court agreed with the Attorney General’s more narrow interpretation.  The Sixth Circuit upheld this interpretation as constitutionally valid, finding that the statute was not overbroad because it only applied to personally-directed communications rather than generally accessible web sites and public chat rooms. It also concluded that the statute did not violate the Commerce Clause because, appropriately construed, it does not affect out-of-state actors differently than in-state actors, and because the benefits to the state in protecting juveniles from sexual predators outweigh any effect the statute could have on interstate commerce.

The Sixth Circuit’s decision comes after recent challenges to similar anti-pornography statutes in a number of other states.  Though the opinion makes clear that communications made on a generally accessible website or in a public chat room are not within the scope of the statute, and while it appears information on “listservs” or mailing lists would likewise probably not fall within its ambit, the court was less straightforward in explaining whether the legislation would apply to future technologies, indicating only that courts would have to determine whether those technologies are analogous to forms of direct communication explicitly discussed in the opinion.

Avis Bohlen is a 1L at Harvard Law School.