State Supreme Court limits scope of 2004 law, but it still conflicts with federal power COLUMBUS, Ohio—The state of Ohio has just scored a minor victory in its attempts to regulate adult material on the internet, with the Ohio Supreme Court on Wednesday putting its stamp of approval on a scaled-back interpretation of the 2004 law's reach. At issue was Ohio Revised Code (R.C.) 2907.31, which attempts to regulate material harmful to juveniles, which R.C. 2907.01(E) defines as "that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form" which also violates a version of the Miller v. California obscenity test modified for minors. Another section of the law, R.C. 2907.31(D), attempts to apply the "harmful to juveniles" restriction to communications over the Internet, cell phones and other electronic media by criminalizing anyone who "directly sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents or directly offers or agrees to sell, deliver, furnish, disseminate, provide, exhibit, rent, or present material or a performance to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles in violation of this section by means of an electronic method of remotely transmitting information if the person knows or has reason to believe that the person receiving the information is a juvenile or the group of persons receiving the information are juveniles." However, another clause of the statute exempts a provider who has "inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile," or who uses a method of distribution "which does not provide the person the ability to prevent a particular recipient from receiving the information." R.C. 2907.31 was itself a revision of a previous statute that had attempted to accomplish a similar purpose, R.C. 2907.01, and in 2002, a group of free speech advocates, including the American Booksellers Foundation for Free Expression, the Ohio Newspaper Association and prominent psychologist Dr. Marty Klein, sued to prevent the communication restrictions in that earlier version of the law from going into effect, later amending their complaint to encompass the revised statute. The parties to the suit had filed cross-motions for summary judgment with the U.S. District Court, and in 2007, that court permanently enjoined enforcement of the statute, ruling that the challenged section was "overbroad in violation of the First Amendment," having failed the strict scrutiny test for not being narrowly tailored to achieve its goal. In appealing the overbreadth ruling to the Sixth Circuit U.S. Court of Appeals, that court questioned whether the statute was susceptible to a construction which might avoid the need for a ruling on the statute's constitutional merits (or lack thereof). … [Read more...]
