First Amendment attorney Michael A. Bamberger — who represents American Booksellers Foundation for Free Expression — argued Tuesday that the law, meant to shield children from online pornography and predators, violates free speech and is vague.
But Ohio justices were skeptical that his hypothetical scenarios involving website and chat room postings could lead to criminal prosecution under the statute, O.R.C. § 2907.31, which is titled Disseminating Matter Harmful to Juveniles.
Arguing on behalf of the statute, Ohio Solicitor General Ben Mizer said O.R.C. § 2907.31 was revised in 2004 so it would avoid the fate of laws in six other states that were declared unconstitutional.
The law makes it a crime to directly send obscene or harmful material to a juvenile via the web, email, messaging and chat rooms.
A pair of federal laws in the 1990s pushing decency restrictions and safety online were struck down as unconstitutional. So have been similar state laws in Michigan, New Mexico, Arizona, South Carolina, Virginia and Vermont. A law similar to Ohio’s is still pending in the courts in Utah.
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.
The 6th U.S. Circuit Court of Appeals earlier this year asked Ohio's high court to formally respond to two questions about whether O.R.C. § 2907.31 exempts private email, chat rooms and websites from liability, as the state attorney general has argued.
The 6th Circuit asked 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 justices are expected to decide on the case before the end of the year.