YNOT – Some disputed portions of an Ohio state law intended to protect children from online pornography and predators have passed constitutional muster with the state’s Supreme Court, despite protests from free-speech advocates.The 2004 law extended Ohio’s definition of “material harmful to minors” to cover electronic content and behavior. First Amendment advocates sued the state, claiming the statute was vague about liability in cases where minors stumbled across “inappropriate material” online. Ohio’s high court ruled the law breached no constitutional barriers because it does not restrict communication in publicly accessible areas of the web. Instead, the justices ruled, the law clearly applies only to person-to-person communications and then only when an adult realizes the other party is a minor.
“We conclude that a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate [the law], because such a posting does not enable that person to ‘prevent a particular recipient from receiving the information,’” Justice Paul Pfeifer wrote in the unanimous decision.
According to the law, “A person sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents or directly offers or agrees to [do the same] 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 in violation of this section by means of an electronic method of remotely transmitting information if the person knows or has reason to believe that the person receiving the information is a juvenile or the group of persons receiving the information are juveniles.”
Conversely, “A person remotely transmitting information by means of a method of mass distribution does not directly sell [etc.] if either of the following applies:
“The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
“The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.”
The groups challenging the law alleged broad interpretation of the second condition could erode the online free-speech rights of booksellers, newspaper publishers and game designers, all of whom publish material that could be considered “harmful” to minors of different ages.
The Ohio justices said the “mass distribution” clause of the statute was sufficiently narrow to prevent that kind of broad interpretation.
“Based on our understanding of generally acceptable 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,” Pfeifer wrote in the decision.
The Ohio supremes settled only two questions — essentially definitions — in a larger lawsuit that now will continue in the 6th U.S. Circuit Court of Appeals in Cincinnati. At issue is whether the law as a whole will remain under injunction as unconstitutional, as a lower court ruled.
A spokesman for the Media Coalition — a group of nine organizations including the American Booksellers Foundation for Free Expression and the Ohio Newspaper Association — brought the suit against the law. On Wednesday, a spokesman for the coalition said the Ohio high court’s definition of terms was helpful, but he doesn’t believe the justices were specific enough.
“What makes a chat room a ‘public’ chat room, rather than a ‘private’ chat room?” David Horowitz asked during an interview with The [Cleveland] Plain Dealer newspaper. “The decision is a step in the right direction, but still fails to make sure that the Ohio statute does not infringe on free speech.”
The adult entertainment industry probably will not see increased liability in Ohio as a result of the ruling. According to one industry attorney, a defendant has an affirmative defense under the statute as long as he is legitimately unaware he is communicating with a minor, even if the minor gained access by lying.
However, “If the sender knows or has reason to believe that the recipient is actually underage — to doubt the lie — he may be liable,” attorney J.D. Obenberger told YNOT.
Email marketing conducted within guidelines previously established by federal law also probably is not at risk, Obenberger said.
“My reading of the Ohio Supreme Court’s opinion would suggest that wholesale mailings without particularized knowledge as to the age of the recipients would lack the kind of knowledge, scienter, necessary for conviction,” he told YNOT. “To be guilty, there must be a means of communication that is personal, and there must be a knowledge that the person is underage.”
