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6th Circuit Turns to Ohio Supreme Court for Guidance on Controversial Web Obscenity Shield
The National Law Journal
March 23, 2009
The 6th U.S. Circuit Court of Appeals has turned to the Ohio Supreme Court for guidance on interpreting a 2002 Ohio law that attempts to shield minors from obscene material, a law opponents have dubbed an Internet censorship regime.
The 6th Circuit on Thursday asked Ohio's high court to formally respond to two questions about whether the law exempts private e-mail, chat rooms and public Web sites from liability, as the state attorney general has argued.
The statute's survival of the constitutional challenge may hinge on how the court interprets the scope of the law and the meaning of some terms. American Booksellers Foundation for Free Expression v. Cordray, No. 07-4375 (6th Cir.).
The 6th Circuit used a procedure known as "certification of a question" to pass the touchy constitutional problem to the Ohio high court. But the state court justices are not obligated to take on the issue and can simply refuse to answer the circuit's questions.
"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," said Michael A. Bamberger, a leading First Amendment attorney in Sonnenschein Nath & Rosenthal's New York office. He represents the publishers, retailers and Web site operators that challenged the 2002 law.
The statute initially prohibited dissemination to juveniles of material considered "harmful to juveniles," but was blocked by U.S. District Judge Walter H. Rice because, he held, its terms did not comply with U.S. Supreme precedent.
Ohio amended the law in 2003 to fix the legal definitions and again faced First Amendment and commerce clause challenges.
Bamberger 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 Internet, which is not geographically specific, "you would end up dumbing down the Internet," he said.
Holly Hollingsworth, spokeswoman for the Ohio Attorney General's office said, "We are reviewing the certification order and determining what position to take with regard to certification request."
Both sides may file support or opposition to Ohio agreeing to respond to the 6th Circuit.
Rice enjoined the law as applied to Internet communications, finding it unconstitutionally overbroad in violation of the First Amendment. But he denied claims that it also violated the commerce clause in 2007. Both sides appealed.
The 6th Circuit heard arguments in December but, rather than resolve the case, asked Ohio's high court whether the state attorney general's analysis of the scope as applied to electronic communications, for instant messages, e-mail and chat rooms is correct and if the attorney general is correct that the law exempts from liability any material posted on public Web sites.
