The 6th U.S. Circuit Court of Appeals last week asked Ohio's high court to formally respond to two questions about whether O.R.C. 2907.31 (Disseminating Matter Harmful to Juveniles) exempts private email, chat rooms and websites from liability, as the state attorney general has argued.
The appeals court used a procedure known as "certification of a question" to question Ohio justices, who are not obligated to examine the issue and can refuse to answer the 6th Circuit's questions.
First Amendment attorney Michael A. Bamberger — who represents American Booksellers Foundation for Free Expression, the plaintiff in the case — said that the 6th Circuit’s request signals a problem for Ohio, which is the defendant in the case.
"It seems to me if the three distinguished judges of the court of appeals aren't sure what the statute means, that clearly demonstrates it is unconstitutionally vague," Bamberger said.
The statute's survival of the constitutional challenge may hinge on how the 6th Circuit interprets the scope of the law and the meaning of some terms.
The 6th Circuit is asking Ohio whether its attorney general is correct in construing the law “as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person emails and private chat rooms” and whether it is “exempt from liability material posted on generally accessible websites and in public chat rooms.”
Ohio’s statute initially prohibited dissemination to juveniles of material considered "harmful to juveniles," but the law was blocked by U.S. District Judge Walter H. Rice because he ruled its terms did not comply with a U.S. Supreme Court obscenity precedent, Miller vs. California.
In 2003, Ohio amended the law to fix the legal definitions and again faced 1st Amendment and Commerce Clause challenges.
Bamberger, whose co-counsel in the case are adult industry attorneys Louis Sirkin and Jennifer Kinsley, said that seven states have tried to apply laws limiting material on the Internet that is considered harmful to minors but all have been thrown out.
To enforce such provisions on the web, "you would end up dumbing down the Internet," he said.