American Booksellers Foundation for Free Expression v. Strickland
Encyclopedia
American Booksellers Foundation for Free Expression v. Strickland
, 560 F.3d 443 (6th Cir. 2009), is a decision of the Sixth Circuit Court of Appeals involving a constitutional challenge—both facially
and as-applied to internet communications—to an Ohio
statute
prohibiting the dissemination or display to juveniles of certain sexually-explicit materials or performances. The Sixth Circuit panel declined to resolve the constitutional issue but, instead, certified two questions
to the Ohio Supreme Court
regarding the interpretation of the statute. The Ohio Supreme Court answered both questions affirmatively and placed a narrowing construction on the statute. Since the Ohio Supreme Court's decision, the Sixth Circuit has not reheard the case.
and Ohio county prosecutors in United States District Court for the Southern District of Ohio
. Plaintiffs alleged that Ohio Revised Code
§2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment
and the Commerce Clause
of the Constitution
. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials.
The district court granted a preliminary injunction
prohibiting enforcement of the statute as applied to internet communications because it was unconstitutionally overbroad and failed strict scrutiny
, but rejected a challenge under the Commerce Clause. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with two United States Supreme Court
decisions -- Miller v. California
and Ginsberg v. New York
-- which defined the constitutional standards for the regulation of obscenity
and the regulation of material deemed "harmful to minors." Defendants appealed the decision to the Sixth Circuit.
Before the Sixth Circuit could hear the appeal, however, the Ohio General Assembly
amended the challenged statute. The Sixth Circuit remanded the case to the district court to consider the constitutionality of the newly amended statute.
At the district court, plaintiffs challenged the provisions of §2907.31(E), which prohibited the distribution of certain sexually explicit materials that were "harmful to juveniles," and §2907.31(D), "internet provision[]" of the statute. Like their earlier challenge, plaintiffs alleged that the amended statutes violated both the First Amendment and the Commerce Clause, specifically with regard to the statute’s definition of “material harmful to juveniles” and the breadth of the provisions related to internet dissemination. Both parties filed cross motions for summary judgment
.
The district court concluded that the amended statute’s definition of material "harmful to juveniles” was not unconstitutionally vague, and thus satisfied the Supreme Court’s tests under Miller
and Ginsberg
. However, the district court concluded that the statute’s treatment of “internet communications” was unconstitutionally overbroad
in violation of the First Amendment. The court then partially granted and denied summary judgment to both parties. Both parties appealed the decision.
, and the court’s determination that § 2907.31(D) was not violative of the Commerce Clause.
The Sixth Circuit, however, declined to address either party's challenge. Instead, the court focused on the appropriate interpretation of § 2907.31(D). Section 2907.31(D) has two sections, both of which relate to the electronic dissemination of material harmful to juveniles. Section 2907.31(D)(1) provides that a person disseminates material harmful to juveniles through electronic communication when that person “knows or has reason to believe that the person receiving the information is a juvenile.” Section 2907.31(D)(2) precludes from criminal liability those persons disseminating material harmful to juveniles if “[t]he person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile,” or “[t]he method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”
Plaintiffs argued that Section 2907.31(D) was unconstitutionally overbroad and would significantly chill constitutionally protected, adult-to-adult speech. Despite the statute's requirement that the person “know[s] or has reason to believe” the person was disseminating material to a juvenile, due to the inherent difficulties in age verification on the internet, “any internet user is put on notice that the recipient may be a juvenile.” Adults engaged in otherwise constitutionally protected speech could therefore become criminally liable under the statute, simply because the material posted was viewed by a minor. Plaintiffs argued that criminal liability could extend to websites in certain circumstances, and that the statute provided no guidance as to the circumstances when an individual would have "inadequate information" to suspect a juvenile was accessing prohibited material or when a person had "the ability to prevent" juveniles from accessing such information.
Defendants argued that § 2907.31(D) did not apply to "[w]eb communications, other than such personally directed devices as instant messaging
or person-to-person email
." Plaintiffs contended that §2907.31(D) exempts a narrower range of internet communication than Defendants admitted and therefore regulates webpage communication in certain circumstances. The Attorney General's construction of the statute to apply only to "instant messaging or person-to-person email" was a departure from the defendant's construction of the statute in the district court, and not obvious interpretation in light of the text of the statute. However, because "the Attorney General does not bind the state courts or local law enforcement authorities," the Sixth Circuit was unable to "accept [his] interpretation of the law as authoritative."
Furthermore, Plaintiffs also raised a dormant commerce clause
challenge to the statute. The court looked to American Library Association v. Pataki (S.D. N.Y. 1997), which struck down a similar statute on dormant commerce clause grounds in order to conclude that there was no violation, as follows:
"In light of recent decisions, upholding state statutes prohibiting spam and other fraud perpetrated via electronic mail, and the absence of authority to demonstrate preemption of internet regulation by the Federal government, this Court cannot adopt Pataki's reasoning that the transient nature of the internet renders all state regulation of the internet a violation of the commerce clause."
, that "the better course . . [was] to provide the Supreme Court of Ohio with the opportunity to interpret the scope of § 2907.31(D)(2)'s exemptions and the statute's coverage." Because the statute had not been authoritatively interpreted by Ohio's highest court and because the narrowing construction of the statute proposed on appeal by the Attorney General was not binding on state officials, the Sixth Circuit certified two questions to the Ohio Supreme Court in order to assist the court's later resolution of the constitutional issues. Those questions were:
The court upheld the district court's injunction on enforcement of § 2907.31 pending further resolution by the court.
On January 27, 2010, the Court issued its decision, answering both the Sixth Circuit's questions affirmatively, and adopting the statutory construction advocated by the Attorney General. Answering the Sixth Circuit's first question, the Court held 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." With regard to the second question, the Court concluded 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.'"
Laura A. Bischoff, Anti-predator porn law doesn’t apply to web sites, Dayton Daily News (Jan. 28, 2010).
James Nash, Group: Online obscenity law too vague, The Columbus Dispatch (Oct. 21, 2009).
Julie Carr Smyth, High court hears online communications case, Associated Press (Oct. 20, 2009).
American Booksellers Foundation for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149 (Oh. Jan. 27, 2010).
Respondent's (Am. Booksellers Found.'s) Brief in Ohio Supreme Court (filed Aug. 8, 2009).
Petitioner's (Ohio's) Brief in Ohio Supreme Court (filed Jul. 10, 2009).
Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir. 2009).
Plaintiff's (Am. Booksellers Found.'s) Brief in Sixth Circuit Court of Appeals (filed March 31, 2008).
Am. Booksellers Found. for Free Expression v. Strickland, 512 F. Supp. 2d 1082 (S.D. Ohio 2007).
Plaintiff's (Am. Booksellers Found.'s) Amended District Court Complaint(Filed Aug. 8, 2003).
Ted Strickland
Theodore "Ted" Strickland was the 68th Governor of Ohio, serving from 2007 to 2011. A member of the Democratic Party, he previously served in the United States House of Representatives, representing ....
, 560 F.3d 443 (6th Cir. 2009), is a decision of the Sixth Circuit Court of Appeals involving a constitutional challenge—both facially
Facial challenge
In the context of American jurisprudence, a facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void...
and as-applied to internet communications—to an Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
prohibiting the dissemination or display to juveniles of certain sexually-explicit materials or performances. The Sixth Circuit panel declined to resolve the constitutional issue but, instead, certified two questions
Certified question
In the law of the United States, a certified question is a formal request by one court to one of its sister courts, usually but not always in another jurisdiction, for an opinion on a question of law....
to the Ohio Supreme Court
Supreme Court of Ohio
The Supreme Court of Ohio is the highest court in the U.S. state of Ohio, with final authority over interpretations of Ohio law and the Ohio Constitution. The court has seven members, a chief justice and six associate justices, each serving six-year terms...
regarding the interpretation of the statute. The Ohio Supreme Court answered both questions affirmatively and placed a narrowing construction on the statute. Since the Ohio Supreme Court's decision, the Sixth Circuit has not reheard the case.
Facts and Procedural Background
In 2002, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney GeneralOhio Attorney General
The Ohio Attorney General is the chief legal officer of the State of Ohio in the United States. The office is filled by general election, held every four years. The Ohio Attorney General is Mike DeWine.-History:...
and Ohio county prosecutors in United States District Court for the Southern District of Ohio
United States District Court for the Southern District of Ohio
The United States District Court for the Southern District of Ohio is one of two United States district courts in Ohio and includes forty-eight of the state's eighty-eight counties. Appeals from the court are taken to the United States Court of Appeals for the Sixth Circuit at Cincinnati The...
. Plaintiffs alleged that Ohio Revised Code
Ohio Revised Code
The Ohio Revised Code contains all acts passed by the Ohio General Assembly and signed by the governor. The Ohio Revised Code replaced the Ohio General Code in 1953. However the current organization and form of the Ohio Revised Code Title 29 was completely re-written and issued into law by the...
§2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials.
The district court granted a preliminary injunction
Preliminary injunction
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided...
prohibiting enforcement of the statute as applied to internet communications because it was unconstitutionally overbroad and failed strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
, but rejected a challenge under the Commerce Clause. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with two United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decisions -- Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
and Ginsberg v. New York
Ginsberg v. New York
Ginsberg v. New York was a 1968 Supreme Court of the United States decision. The Warren Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.-Background:...
-- which defined the constitutional standards for the regulation of obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
and the regulation of material deemed "harmful to minors." Defendants appealed the decision to the Sixth Circuit.
Before the Sixth Circuit could hear the appeal, however, the Ohio General Assembly
Ohio General Assembly
The Ohio General Assembly is the state legislature of the U.S. state of Ohio. It consists of the 99-member Ohio House of Representatives and the 33-member Ohio Senate...
amended the challenged statute. The Sixth Circuit remanded the case to the district court to consider the constitutionality of the newly amended statute.
At the district court, plaintiffs challenged the provisions of §2907.31(E), which prohibited the distribution of certain sexually explicit materials that were "harmful to juveniles," and §2907.31(D), "internet provision[]" of the statute. Like their earlier challenge, plaintiffs alleged that the amended statutes violated both the First Amendment and the Commerce Clause, specifically with regard to the statute’s definition of “material harmful to juveniles” and the breadth of the provisions related to internet dissemination. Both parties filed cross motions for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
.
The district court concluded that the amended statute’s definition of material "harmful to juveniles” was not unconstitutionally vague, and thus satisfied the Supreme Court’s tests under Miller
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
and Ginsberg
Ginsberg v. New York
Ginsberg v. New York was a 1968 Supreme Court of the United States decision. The Warren Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.-Background:...
. However, the district court concluded that the statute’s treatment of “internet communications” was unconstitutionally overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
in violation of the First Amendment. The court then partially granted and denied summary judgment to both parties. Both parties appealed the decision.
Issues Presented
Defendants appealed the district court’s determination that the section of the statute governing internet dissemination, § 2907.31(D), was unconstitutionally overbroad and violative of the First Amendment. Plaintiffs appealed the district court’s determination that the section of the statute defining material “harmful to juveniles,” §2907.01(E), was not void for vaguenessVoid for vagueness
Void for vagueness is a legal concept in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague...
, and the court’s determination that § 2907.31(D) was not violative of the Commerce Clause.
The Sixth Circuit, however, declined to address either party's challenge. Instead, the court focused on the appropriate interpretation of § 2907.31(D). Section 2907.31(D) has two sections, both of which relate to the electronic dissemination of material harmful to juveniles. Section 2907.31(D)(1) provides that a person disseminates material harmful to juveniles through electronic communication when that person “knows or has reason to believe that the person receiving the information is a juvenile.” Section 2907.31(D)(2) precludes from criminal liability those persons disseminating material harmful to juveniles if “[t]he person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile,” or “[t]he method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”
Plaintiffs argued that Section 2907.31(D) was unconstitutionally overbroad and would significantly chill constitutionally protected, adult-to-adult speech. Despite the statute's requirement that the person “know[s] or has reason to believe” the person was disseminating material to a juvenile, due to the inherent difficulties in age verification on the internet, “any internet user is put on notice that the recipient may be a juvenile.” Adults engaged in otherwise constitutionally protected speech could therefore become criminally liable under the statute, simply because the material posted was viewed by a minor. Plaintiffs argued that criminal liability could extend to websites in certain circumstances, and that the statute provided no guidance as to the circumstances when an individual would have "inadequate information" to suspect a juvenile was accessing prohibited material or when a person had "the ability to prevent" juveniles from accessing such information.
Defendants argued that § 2907.31(D) did not apply to "[w]eb communications, other than such personally directed devices as instant messaging
Instant messaging
Instant Messaging is a form of real-time direct text-based chatting communication in push mode between two or more people using personal computers or other devices, along with shared clients. The user's text is conveyed over a network, such as the Internet...
or person-to-person email
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
." Plaintiffs contended that §2907.31(D) exempts a narrower range of internet communication than Defendants admitted and therefore regulates webpage communication in certain circumstances. The Attorney General's construction of the statute to apply only to "instant messaging or person-to-person email" was a departure from the defendant's construction of the statute in the district court, and not obvious interpretation in light of the text of the statute. However, because "the Attorney General does not bind the state courts or local law enforcement authorities," the Sixth Circuit was unable to "accept [his] interpretation of the law as authoritative."
Furthermore, Plaintiffs also raised a dormant commerce clause
Dormant Commerce Clause
The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution...
challenge to the statute. The court looked to American Library Association v. Pataki (S.D. N.Y. 1997), which struck down a similar statute on dormant commerce clause grounds in order to conclude that there was no violation, as follows:
"In light of recent decisions, upholding state statutes prohibiting spam and other fraud perpetrated via electronic mail, and the absence of authority to demonstrate preemption of internet regulation by the Federal government, this Court cannot adopt Pataki's reasoning that the transient nature of the internet renders all state regulation of the internet a violation of the commerce clause."
Certification of State Law Questions
"Rather than speculate" on the proper scope and interpretation of § 2907.31(D), the Sixth Circuit determined, sua sponteSua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
, that "the better course . . [was] to provide the Supreme Court of Ohio with the opportunity to interpret the scope of § 2907.31(D)(2)'s exemptions and the statute's coverage." Because the statute had not been authoritatively interpreted by Ohio's highest court and because the narrowing construction of the statute proposed on appeal by the Attorney General was not binding on state officials, the Sixth Circuit certified two questions to the Ohio Supreme Court in order to assist the court's later resolution of the constitutional issues. Those questions were:
(1) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to limit the scope of § 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 O.R.C. § 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?
The court upheld the district court's injunction on enforcement of § 2907.31 pending further resolution by the court.
Subsequent History
The Ohio Supreme Court accepted the Sixth Circuit's questions for certification on June 3, 2009. The Court heard oral arguments on October 20, 2009.On January 27, 2010, the Court issued its decision, answering both the Sixth Circuit's questions affirmatively, and adopting the statutory construction advocated by the Attorney General. Answering the Sixth Circuit's first question, the Court held 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." With regard to the second question, the Court concluded 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.'"
Media Coverage
James Nash, State high court upholds Net law to protect kids, The Columbus Dispatch (Jan. 28, 2010).Laura A. Bischoff, Anti-predator porn law doesn’t apply to web sites, Dayton Daily News (Jan. 28, 2010).
James Nash, Group: Online obscenity law too vague, The Columbus Dispatch (Oct. 21, 2009).
Julie Carr Smyth, High court hears online communications case, Associated Press (Oct. 20, 2009).
Parties' Briefs and Court Decisions
American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).American Booksellers Foundation for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149 (Oh. Jan. 27, 2010).
Respondent's (Am. Booksellers Found.'s) Brief in Ohio Supreme Court (filed Aug. 8, 2009).
Petitioner's (Ohio's) Brief in Ohio Supreme Court (filed Jul. 10, 2009).
Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir. 2009).
Plaintiff's (Am. Booksellers Found.'s) Brief in Sixth Circuit Court of Appeals (filed March 31, 2008).
Am. Booksellers Found. for Free Expression v. Strickland, 512 F. Supp. 2d 1082 (S.D. Ohio 2007).
Plaintiff's (Am. Booksellers Found.'s) Amended District Court Complaint(Filed Aug. 8, 2003).