Sixth Circuit Upholds Ohio Anti-Pornography Statute
By Avis Bohlen – Edited by Dmitriy Tishyevich
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. (more…)