Ohio Supreme Court Agrees With AG’s Reading of Law Banning Electronic Transmission of Pornography to Minors

ourt Agrees With AG’s Reading of Law Banning Electronic Transmission of Pornography to Minors

Am. Booksellers Found. for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149.
Certified Questions of State Law, United States Court of Appeals for the Sixth Circuit, Nos. 07-4375 and 07-4376. Certified questions answered in the affirmative.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-149.pdf

(Jan. 27, 2010) The Supreme Court of Ohio today agreed with the state attorney general’s interpretation that a state law banning electronic transmission to minors of pornography or other material “harmful to juveniles” applies only to personally directed communications such as instant messaging, person-to-person emails and private chat rooms, and exempts from liability material that is posted on generally accessible websites and in public chatrooms.

Today’s 7-0 decision, authored by Justice Paul E. Pfeifer, did not address the constitutionality of the statute at issue, R.C. 2907.31(D), but merely answered limited questions of law submitted to the Court by the U.S. 6th Circuit Court of Appeals regarding which types of electronic communication are and are not subject to prosecution under the statute.

R.C. 2907.31 makes it a crime to directly disseminate or offer to disseminate to a juvenile any material or performance that is “obscene or harmful to juveniles” as those terms are defined elsewhere in state law. In Paragraph D of that statute, which prohibits the dissemination of harmful or obscene material to a juvenile “by means of an electronic method of remotely transmitting information,” the law exempts from prosecution: 1) a person who “has inadequate information to know or have reason to believe that a particular recipient of (adult material) is a juvenile;” and 2) a person making adult material available electronically if “the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”

In 2007, the U.S. District Court for the Southern District of Ohio granted an injunction sought by the American Booksellers Foundation for Free Expression barring the state attorney general and county prosecutors from enforcing the provisions of R.C. 2907.31 that address electronic dissemination of harmful or obscene materials. The district court based its ruling on findings that the challenged provisions are unconstitutionally “overbroad” and “violate the strict scrutiny test of the First Amendment.” The state, represented by Attorney General Richard Cordray and county prosecutors, appealed the district court’s ruling to the U.S. 6th Circuit Court of Appeals.

After reviewing the parties’ written pleadings, the 6th Circuit asked the Supreme Court of Ohio to review the statutory language under dispute and the interpretation of that language advanced by the attorney general, and then to answer two specific questions: 1. “Is the Attorney General correct in construing R.C. 2907.31(D) to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?” 2. “Is the Attorney General correct in construing R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?”

Writing for the Supreme Court in today’s decision, Justice Pfeifer concluded that, “(b)ased on the plain language of R.C. 2907.31(D), we answer both certified questions in the affirmative.”

He wrote: “Of particular significance, because the certified questions are based on the manner in which the Attorney General construes the statutes at issue, is a sentence in the Attorney General's brief in which he claims that R.C. 2907.31(D)(2) ‘clarifies that a person who does not “know or have reason to believe that a particular recipient of the information or offer is a juvenile” does not violate the statute upon transmitting harmful-to-juveniles material, even if a minor receives it.’ We conclude that the scope of R.C. 2907.31(D) is limited to electronic communications that can be personally directed, because otherwise the sender of matter harmful to juveniles cannot know or have reason to believe that a particular recipient is a juvenile.”

“Pursuant to R.C. 2907.31(D)(2), R.C. 2907.31(D)(1) is not violated when matter harmful to juveniles is disseminated by a method of mass distribution that does not allow the sender to prevent the distribution to particular recipients. Based on our understanding of generally accessible websites and public chat rooms, they are open to all, including juveniles, and current usage and technology do not allow a person who posts thereon to prevent particular recipients, including juveniles, from accessing the information posted. ... We conclude that a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate R.C. 2907.31(D), because such a posting does not enable that person to ‘prevent a particular recipient from receiving the information.’”

Noting that the certified questions of law and arguments advanced by the parties in this case focus on particular types of electronic communications, namely email, instant messaging, private chat rooms, public chat rooms and generally accessible Web sites, Justice Pfeifer wrote that today’s ruling “is accordingly constrained by that focus and should not be construed as necessarily governing other types of electronic transmissions, whether currently in use or developed in the future.”

Contacts
Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

Michael M. Bamberger, 212.768.6756, for American Booksellers Foundation for Free Expression et al.

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