Ohio internet obscenity statute constitutional

American Booksellers Foundation for Free Expression v. Strickland, — F.3d —, 2010 WL 1488123 (6th Cir. April 15, 2010)

Court holds that statute prohibiting distribution of material harmful to minors directly via the internet is not overly broad and therefore not unconstitutional.

Ohio has a statute that criminalizes sending juveniles material that is harmful to those juveniles (ORC 2907.31). Section D of that statute specifically addresses communications “by means of an electronic method of remotely transmitting information.”

A group of booksellers and publishers challenged this statute on First Amendmendment grounds, arguing that the provisions are overly broad. After a complex procedural journey that began in 2002, the Sixth Circuit Court of Appeals has held that the statute is not unconstitutional.

The court held that the statute was not overly broad because it only apllies to personally directed communications. For that reason, the plaintiffs were unable to demonstrate from the text of the statute that a “substantial number of instances exist in which the law cannot be applied constitutionally.”

Unlike a typical First Amendment case, the court did not apply the “strict scrutiny” test for constitutionality, because the statute does not affect protected speech among adults. But the court noted that even if that test applied, it would have survived strict scrutiny, given the compelling interests in protecting children from predators.

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