The statute in question, section §2907.31, provided in part that “no person, with knowledge of its character and content, shall recklessly do any of the following … directly sell, deliver, furnish, disseminate, provide, exhibit, rent or present 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, any material or performance that is obscene or harmful to juveniles.”
The American Booksellers Foundation for Free Expression and other plaintiffs filed a lawsuit to overturn the law, arguing that the statute and several of its individual provisions were unconstitutionally vague, overbroad and in violation of the 1st and 14th Amendments and the Commerce Clause of the U.S. Constitution.
Were the Ohio statute allowed to stand, the plaintiffs argued, it could chill online speech throughout the country, because the nature of the Internet is such that even a communication intended for an adult outside of the state of Ohio — like a post to a message board or forum — easily could be accessed and read by a minor within Ohio.
In a ruling issued this week, U.S. District Court Judge Walter Rice agreed with the plaintiffs that the statute was unconstitutionally overbroad and violated the 1st Amendment.
“Under the overbreadth doctrine, a statute is unconstitutionally overbroad when its scope is so broad that it penalizes a substantial amount of protected speech in an attempt to regulate that which is unprotected,” Rice wrote in his ruling. “In reviewing statutes similar to the one in question, the Supreme Court has cautioned that the ‘governmental interest in protecting children from harmful material ... does not justify an unnecessarily broad suppression of speech addressed to adults.’ This court concludes that the enactment of [the statute] has done just this.”
The state argued that the statute was not overbroad because an amendment to the statute, section § 2907.31.(D)(2), “address[ed] the objections… because a person is not in violation ... when remotely transmitting by means of a method of mass distribution if ‘a person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile’ or ‘the method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.’”
Rice wrote that he was “not persuaded by the defendants’ argument.”
“Although 2907.31.(D)(2) may act to limit the scope of this statute, [it] is still overbroad and infringes on constitutionally protected adult-adult speech” Rice wrote. “The limiting provisions do not extend to one-to-one methods of communication in places such as chat rooms.”
Rice noted that other courts have held that “every user of the Internet has reason to know that some participants in chat rooms are minors,” and as such, adults have “no way of ensuring that her communications in a chat room would be between and among other adults alone.”
“There is simply no means, under existing technology, to restrict conversations in a chat room to adults, only,” Rice said. “Consequently, an adult sending a one-to-one message which is unprotected as to minors under the Miller-Ginsburg standard, but protected as to adults under the standard in Miller, will be liable under 2907.31.(D)(1). Therefore, the provision is overbroad.”
The judge also found that the statute constituted a “content-based restriction,” and therefore was subject to the “strict scrutiny” standard. Rice noted that under the strict scrutiny standard, regulations of protected speech are to be upheld only if the state has demonstrated that the limitation on legal speech is necessary to “serve a compelling state interest” and that the statute is “narrowly drawn to achieve that end.”
Rice found that while the state had identified a compelling interest, it had failed to show that the statute was narrowly tailored to meet the state’s objective.
“Defendants state that the purpose of the House Bill 490 amendments is to ‘intercept the activity of sexual predators aiming to lure children into sexual encounters.’ Undoubtedly, this is a compelling government interest,” Rice wrote. “However, Ohio has failed to demonstrate that [the statute] is narrowly tailored to achieve this compelling interest … [the statute] and its related provisions do not limit the scope of the statute to those disseminating material harmful to juveniles with the intent to induce children into sexual activity.”
While Rice disagreed with the plaintiffs concerning their 14th Amendment and Commerce Clause claims, he issued a permanent injunction against enforcement of the statute with respect to Internet communications, based on the 1st Amendment violations specified in his analysis.
Ted Hart, spokesman for the Ohio Attorney General’s office, declined to comment other than to state that the state is reviewing Rice’s decision and considering its options.