April 19 – 22, 2010 Edition Federal Ruling in Ohio Termed Free Speech Victory

AUTHORLINK NEWS/4/15/2010–The American Booksellers Foundation for Free Expression (ABFFE) has welcomed an April 15 federal appeals court ruling that held that an Ohio statute that imposes fines and prison terms for providing non-obscene, sexually explicit material to minors cannot be applied to communications on websites, in public chatrooms, and through e-mail listservs and mailing lists. The ABFFE reported its position on its website.

"Free speech has won a victory in Ohio," said ABFFE President Chris Finan. "The federal court's narrow construction of the Ohio statute recognizes that the First Amendment protects the right of adults to use websites and other electronic means for communications that might be inappropriate in a one-to-one communication with a minor. For booksellers selling a broad spectrum of constitutionally protected material, the decision comes as very good news."

The U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, Ohio, ruled that Ohio's "harmful to minors" statute should be construed narrowly. The court held that people could be prosecuted for sending sexually explicit, non-obscene material to minors through "personally directed" electronic communications, such as person-to-person e-mail, and in private chatrooms, just as they can be prosecuted for giving such materials to a minor in person. But the court also held that the statute could not be used to prosecute persons who post such materials on websites or in public chatrooms, or transmit them through e-mail listservs or mailing lists.

Persons convicted of violating the law with non-obscene materials can be imprisoned up to six months or fined $1,000, and those convicted of violating the law with obscene material can be imprisoned up to 18 months or fined $5,000.

The ruling came in a lawsuit brought by booksellers, publishers, mainstream website publishers, newspapers, and music and video retailers. The lawsuit initially challenged an earlier version of the statute that imposed criminal penalties for the electronic transmission, to minors, of a wide range of materials protected by the First Amendment — including not only non-obscene, sexually explicit materials, but also materials that use "foul language" or depict or describe nudity, extreme violence, or criminal activity.

After U.S. District Judge Walter Herbert Rice ruled in 2002 against that broader statute, the Ohio legislature narrowed the statute, limiting it to non-obscene, sexuallyexplicit material. In 2007, Judge Rice again found that the law was too broad, and unconstitutionally interfered with legitimate adult-to-adult online communications.

When Ohio appealed to the federal appeals court, the Ohio attorney general decided not to defend the full breadth of the statute, and suggested that the statute should be construed narrowly and limited to one-to-one communications, such as e-mails, instant messages, and messages in private chat rooms. The attorney general conceded that there is no method, in generally accessible websites and public chatrooms, to exclude minors from adult-to-adult communications that are protected by the First Amendment. In response to certified questions posed by the federal appeals court, the Ohio Supreme Court adopted the attorney general's narrow construction of the statute.

"We should certainly have in place adequate legal safeguards to shield children from objectionable content, but those safeguards cannot unreasonably interfere with the rights of adults to have access to materials that are protected by the First Amendment," said Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, general counsel for Media Coalition, which represented the plaintiffs in the Ohio case.

David Horowitz, executive director of Media Coalition, noted that parental control software, pre-loaded in many computers, and also available online, enables parents to block access to sexually explicit materials on the Web, to prevent minors from giving personal information to strangers by e-mail or in chat rooms, and to maintain a log of all online activity on a home computer.

Plaintiffs in the lawsuit include ABFFE, Association of American Publishers, Freedom to Read Foundation, National Association of Recording Merchandisers, Sexual Health Network, Inc., Video Software Dealers of America (now Entertainment Merchants Association), and Ohio Newspaper Association.