In 2002, the Ohio Legislature enacted a law prohibiting the dissemination or display of “materials harmful to juveniles.” Several publishers, retailers and website operators sued Ohio’s Attorney General and county prosecutors, arguing that Ohio Revised Code (ORC) § 2907.31 (D) (1) violated the First Amendment and Commerce Clause. Plaintiff sought to enjoin Defendants from enforcing ORC § 2907.01 (E) & (J) (2002).
“The district court granted a preliminary injunction because the statute’s definition of ‘harmful to juveniles’ did not comport with the Supreme Court’s test in Miller v. California, 413 US 15 (1973), as modified for juveniles in Ginsburg v. New York, 390 US 629 (1968). Bookfriends, Inc. v. Taft, 223 FSupp.2d 932, 945 (SD Ohio 2002).”
Defendants appealed but before the court heard the appeal, the 2003 Ohio Legislature amended the statute so the court returned the case to the district court. On remand, the district court “permanently enjoined the enforcement of ORC § 2907.31 (D) as applied to internet communications,” finding that it was overbroad and violates the First Amendment. Am. Booksellers Found. for Free Expression v. Strickland, 512 FSupp.2d 1082, 1106 (SD Ohio 2007). The court found that “the statute failed strict scrutiny.” It rejected Plaintiffs’ void-for-vagueness challenge, concluding “that the definition of ‘harmful to juveniles’ in the new statute conformed to the Miller-Ginsburg standard.” The court also rejected Plaintiffs’ Commerce Clause challenge.
On appeal, the Sixth Circuit observed that “the parties fundamentally disagree on the scope of the challenged statute and on the meaning of several of its terms.” Defendants asserted “that none of Plaintiffs’ internet activity falls within the statute’s sweep.” While Plaintiffs asserted “that § 2907.31 (D) exempts a narrower range of internet communication than Defendants admit and regulates webpage communication in certain circumstances.”
“Rather than speculate,” the court determined that “the better course is 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.” Therefore, it sua sponte certified two questions to the State court concerning the scope of the law. See: Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443 (6th Cir. 2009).
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Related legal case
Am. Booksellers Found. for Free Expression v. Strickland
|Cite||560 F.3d 443 (6th Cir. 2009)|
|Level||Court of Appeals|