[Eugene Volokh, March 19, 2009 at 5:28pm] Trackbacks
Does Ohio Ban on Disseminating "Harmful to Juveniles" Material to Juveniles

apply only to "personally directed devices" aimed at particular juveniles, for instance "instant messaging ... or person-to-person e-mail," or does it also cover at least some Web material that can be read by juveniles?

The U.S. Court of Appeals for the Sixth Circuit just asked the Ohio Supreme Court to interpret the Ohio statute, so the Sixth Circuit can then determine whether the statute violates the First Amendment. (State supreme courts are considered the final expositors of the meaning — as opposed to the constitutionality — of state statutes, so federal courts will sometimes certify such interpretive questions to state courts.) The statute is indeed pretty complex, and in my experience fairly unusual. If you want to comment about the case, you might want to read it carefully; it's on pp. 3 and 4 of the linked-to opinion.

Thanks to How Appealing for the pointer.

Crunchy Frog:
Looks to me like web material would by necessity be included in (A)(1), in that posting on a web site constitutes "disseminat[ion]". At the very least, it would require the use of "available technology" (i.e. age verification via credit card) in order to escape being captured.

I don't see this as anything other than a state version of the Communications Decency Act.
3.19.2009 7:39pm
Don Meaker (mail):
Not being a lawyer, my reading the case would, like teaching a pig to sing, merely frustrate me and annoy the pig.

But applying a law to personally directed communications and not to broadcast communications is rather like for bidding murder, but not mass murder.
3.19.2009 9:54pm
Applekeys:
Very interesting. To be clear, it seems the threshold question here is whether or not any of the plaintiffs have standing, to which the scope of the statute's coverage is relevant.

The opinion (rather cryptically) says that plaintiffs "include publishers, retailers, and web site operators" (publishers and retailers of what?), but if the statute does not cover web site operators then, unconstitutional or not, there is no standing.

Anyway, fascinating statute.
3.19.2009 10:24pm
ReaderY:
The 6th Circuit's practice seems to represent something of a narrowing of the overbreadth doctrine from years past (which, in my view, is a good thing.) In years past federal courts would strike down a law if it might possibly be interpreted as unconstitutional. Giving a state court an opportunity to construe it first represents a salutary moderation.

The statute is essentially an obscenity law for minors; it prohibits conduct obscene for or harmful to minors. It strikes me that the Ohio Supreme Court could very easily interpret it into something within the Ginsberg framework simply by interpreting the "harmful to" element somewhat narrowly, or even by severing it.
3.19.2009 11:22pm
Fub:
Aside from the idiocy of a law setting yet another vague and subjective standard of acceptable speech (the juvenile "Miller test" analog in Section 2907.01(E)), another provision of the revised statute appears to provide a loophole that spammers will drive a truck through: the "internet" provisions of Section 2907.31(D)(2).
(2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, [etc.] ... if either of the following applies:
(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.
Since spammers have no knowledge about the recipients of their missives except (remotely possible, and only in rarest cases) that the email they sent did not bounce, it appears that the statute exempts spammers.

One issue that will be before the OH Supreme court appears to be whether a communication must be a "personally directed" communication for the statute to apply:
Defendants argue that none of Plaintiffs’ internet activity falls with the statute’s sweep because the statute “does not regulate Web communications, other than such personally directed devices as instant messaging [commonly referred to as ‘IM,’] or person-to-person e-mail.”
But, even if a "personally directed" communication (IM or e-mail) is used, the fact that the spammer has no knowledge or ability to know about the majority/minority status of the recipient, will exempt the spammer from the statute's provisions.
3.20.2009 12:15pm
Bob Goodman (mail) (www):
If you know the recipient is a LEO but don't know whether the LEO is impersonating a juvenile, are you supposed to ask the LEO whether s/he's impersonating a juvenile, and if so, how is a LEO who is impersonating a juvenile supposed to answer? And does "impersonating" mean representing oneself as a particular individual? What if the LEO is impersonating an individual, but you don't know whether the real person the LEO is impersonating is a juvenile? Are you supposed to seek out the real person and determine the answer on that basis?
3.22.2009 6:12pm
ReaderY:
Not only are Supreme Court justices always rational, they're never vague.

They're just not the same as you or I. If we don't get it, it's our fault.
3.22.2009 11:10pm

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