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Ohio high court narrowly interprets anti-porn law

By The Associated Press
01.27.10

COLUMBUS, Ohio — The Ohio Supreme Court has narrowly interpreted a state law aimed to protecting children from online pornography and predators, delivering a blow to free-speech advocates who want it thrown out as unconstitutional.

In its unanimous ruling, the court said a 2004 law extending the state's definition of "material harmful to minors" to the Internet is clearly intended to apply only to person-to-person communications — not to generally accessible Web sites and public chat rooms.

"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 American Booksellers Foundation for Free Expression v. Cordray.

The interpretation is a blow to a coalition led by the American Booksellers Foundation for Free Expression, which has been challenging similar statutes around the country. It argues such protections, when applied too broadly to online material, erode the constitutional free-speech rights of online booksellers, newspaper publishers and video-game dealers. Technology, they say, can't always keep the harmful information from children.

The Ohio high court's legal interpretation now goes back to the 6th U.S. Circuit Court of Appeals based in Cincinnati, which is considering the larger constitutional question.

The 6th Circuit had asked the state high court to resolve two key legal questions before the federal court moved forward on the booksellers' lawsuit. The questions involved what is meant by the technical terms contained in the law: "mass distribution" and "personally directed devices." On both questions, the Ohio high court sided with state Attorney General Richard Cordray's arguments that the law was intended to be narrowly interpreted.

"Based on our understanding of generally acceptable websites and public chat rooms," Pfeifer wrote, "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."

A U.S. district court where the suit originated put enforcement of the law on hold after concluding its wording was overbroad and in violation of the First Amendment. That decision was appealed to the 6th Circuit.

This is the second challenge by booksellers, newspaper publishers and others of the status. State lawmakers specifically amended the initial statute in an attempt to address First Amendment issues and avoid litigation.


Related

Limits on bookstore, library displays overturned (news)
Federal judge finds Arkansas law to shield minors from porn violates First Amendment. 11.18.04

Booksellers challenge Ore. law on sexual material (news)
ACLU says 2007 law is vague and could result in parents' being charged for providing educational books to their children. 05.01.08

Mass. high court: Sexual instant messages to minors are legal (news)
Justices say Legislature must change statute to bar such texts; state senator says she'll file legislation 'to bring this law into the 21st century.' 02.08.10

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