American Booksellers Foundation for Free Expression v. Cordray , 124 Ohio St. 3d 329 ( 2010 )

[Cite as Am. Booksellers Found. for Free Expression v. Cordray, 124 Ohio St. 3d 329, 2010-
Ohio-149.]
AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ET AL. v.
CORDRAY, ATTY. GEN., ET AL.
[Cite as Am. Booksellers Found. for Free Expression v. Cordray,
124 Ohio St. 3d 329, 2010-Ohio-149.]
R.C. 2907.31(A) as applied to electronic communications is limited to personally
directed communications such as instant messages, person-to-person e-
mails, and postings in private chat rooms.
(No. 2009-0609 — Submitted October 20, 2009 — Decided January 27, 2010.)
ON ORDER from the United States Court of Appeals for the Sixth Circuit
Certifying Questions of State Law, Nos. 07-4375 and 07-4376.
__________________
PFEIFER, J.
{¶ 1} Pursuant to S.Ct.Prac.R. 18.6, we accepted the following questions
of state law certified by the United States Court of Appeals for the Sixth Circuit:
{¶ 2} 1. Is the Attorney General correct in construing R.C. 2907.31(D)
to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to
personally directed devices such as instant messaging, person-to-person e-mails,
and private chat rooms?
{¶ 3} 2. Is the Attorney General correct in construing R.C. 2907.31(D)
to exempt from liability material posted on generally accessible websites and in
public chat rooms?
{¶ 4} For the reasons that follow, we answer each question in the
affirmative.
Facts and Procedural History
SUPREME COURT OF OHIO
{¶ 5} Respondents, American Booksellers Foundation for Free
Expression, Association of American Publishers, Inc., Freedom to Read
Foundation, National Association of Recording Merchandisers, Ohio Newspaper
Association, Sexual Health Network, Inc., Video Software Dealers Association,
Web Del Sol, and Marty Klein (collectively, "American Booksellers"), filed a
lawsuit in 2002 seeking to enjoin the enforcement of R.C. 2907.01(E) and (J).
The district court granted a preliminary injunction. Bookfriends, Inc. v. Taft
(S.D.Ohio 2002), 223 F. Supp. 2d 932, 945. Before the appeal could be heard, the
General Assembly amended the statute. The new statute, R.C. 2907.31(A),
provides:
{¶ 6} "(A) No person, with knowledge of its character or content, shall
recklessly do any of the following:
{¶ 7} "(1) Directly sell, deliver, furnish, disseminate, provide, exhibit,
rent, or present to a juvenile, a group of juveniles, a law enforcement officer
posing as a juvenile, or a group of law enforcement officers posing as juveniles
any material or performance that is obscene or harmful to juveniles;
{¶ 8} "(2) Directly offer or agree to sell, deliver, furnish, disseminate,
provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law
enforcement officer posing as a juvenile, or a group of law enforcement officers
posing as juveniles any material or performance that is obscene or harmful to
juveniles;
{¶ 9} "(3) While in the physical proximity of the juvenile or law
enforcement officer posing as a juvenile, allow any juvenile or law enforcement
officer posing as a juvenile to review or peruse any material or view any live
performance that is harmful to juveniles."
{¶ 10} The term "harmful to juveniles" is defined in R.C. 2907.01(E). It
provides:
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January Term, 2010
{¶ 11} "(E) 'Harmful to juveniles' means that quality of any material or
performance describing or representing nudity, sexual conduct, sexual excitement,
or sado-masochistic abuse in any form to which all of the following apply:
{¶ 12} "(1) The material or performance, when considered as a whole,
appeals to the prurient interest in sex of juveniles.
{¶ 13} "(2) The material or performance is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable for
juveniles.
{¶ 14} "(3) The material or performance, when considered as a whole,
lacks serious literary, artistic, political, and scientific value for juveniles."
{¶ 15} R.C. 2907.31(D) states that the prohibitions of R.C. 2907.31(A)
apply to electronic forms of communication. It provides:
{¶ 16} "(D)(1) A person directly sells, delivers, furnishes, disseminates,
provides, exhibits, rents, or presents or directly offers or agrees to sell, deliver,
furnish, disseminate, provide, exhibit, rent, or present material or a performance to
a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or
a group of law enforcement officers posing as juveniles in violation of this section
by means of an electronic method of remotely transmitting information if the
person knows or has reason to believe that the person receiving the information is
a juvenile or the group of persons receiving the information are juveniles.
{¶ 17} "(2) A person remotely transmitting information by means of a
method of mass distribution does not directly sell, deliver, furnish, disseminate,
provide, exhibit, rent, or present or directly offer or agree to sell, deliver, furnish,
disseminate, provide, exhibit, rent, or present the material or performance in
question to a juvenile, a group of juveniles, a law enforcement officer posing as a
juvenile, or a group of law enforcement officers posing as juveniles in violation of
this section if either of the following applies:
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SUPREME COURT OF OHIO
{¶ 18} "(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.
{¶ 19} "(b) The method of mass distribution does not provide the person
the ability to prevent a particular recipient from receiving the information."
{¶ 20} The parties filed cross-motions for summary judgment, and in Am.
Booksellers Found. for Free Expression v. Strickland (S.D.Ohio 2007), 512
F. Supp. 2d 1082, 1106, the federal district court permanently enjoined the
enforcement of R.C. 2907.31(D). The court concluded that R.C. "2907.31(D)(1)
is overbroad in violation of the First amendment" and "violates the strict scrutiny
test of the First Amendment." Id. at 1094 and 1097. The court also concluded
that "the phrase 'patently offensive to prevailing standards in the adult community
with respect to what is suitable for juveniles' in [R.C.] 2907.01(E) is not
unconstitutionally vague." Id. at 1099. The district court also concluded that R.C.
2907.31(D)(1) does not violate the Commerce Clause. Id. at 1105.
{¶ 21} The case was appealed to the Sixth Circuit Court of Appeals.
During its consideration of the appeal, the court determined that the relevant
statutes are "susceptible of a construction by [this court] 'which might avoid in
whole or in part the necessity for federal constitutional adjudication, or at least
materially change the nature of the problem.' " Bellotti v. Baird (1976), 428 U.S.
132, 147, 96 S. Ct. 2857, 49 L. Ed. 2d 844, quoting Harrison v. Natl. Assn. for the
Advancement of Colored People (1959), 360 U.S. 167, 177, 79 S. Ct. 1025, 3
L. Ed. 2d 1152. Accordingly, it certified the two questions set forth above to us,
which we now answer.
Analysis
{¶ 22} R.C. 2907.31 generally prohibits the dissemination of matter that is
harmful to juveniles. The specific provisions before us address the dissemination
of matter harmful to juveniles by "an electronic method of remotely transmitting
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January Term, 2010
information." R.C. 2907.31(D). A person cannot be convicted of disseminating
matter harmful to juveniles by electronic means unless that person "knows or has
reason to believe that the person receiving the information is a juvenile or the
group of persons receiving the information are juveniles." R.C. 2907.31(D)(1).
This general scienter requirement is further qualified in R.C. 2907.31(D)(2),
which states that a person does not violate R.C. 2907.31(D)(1) if "[t]he person has
inadequate information to know or have reason to believe that a particular
recipient of the information or offer is a juvenile" or if "[t]he method of mass
distribution does not provide the person the ability to prevent a particular recipient
from receiving the information.”
{¶ 23} Based on the plain language of R.C. 2907.31(D), we answer both
certified questions in the affirmative.
{¶ 24} R.C. 2907.31(D) can be violated only when matter harmful to
juveniles is transmitted to someone who the sender knows is a juvenile or has
reason to believe is a juvenile. The statute requires not that the sender know the
recipient by name, but that the sender know or have reason to believe that the
recipient is a juvenile. Of particular significance, because the certified questions
are based on the manner in which the attorney general construes the statutes at
issue, is a sentence in the attorney general's brief in which he claims that R.C.
2907.31(D)(2) "clarifies that a person who does not 'know or have reason to
believe that a particular recipient of the information or offer is a juvenile' does not
violate the statute upon transmitting harmful-to-juveniles material, even if a minor
receives it." We conclude that the scope of R.C. 2907.31(D) is limited to
electronic communications that can be personally directed, because otherwise the
sender of matter harmful to juveniles cannot know or have reason to believe that a
particular recipient is a juvenile.
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SUPREME COURT OF OHIO
{¶ 25} Pursuant to R.C. 2907.31(D)(2), R.C. 2907.31(D)(1) is not violated
when matter harmful to juveniles is disseminated by a method of mass
distribution that does not allow the sender to prevent the distribution to particular
recipients. Based on our understanding of generally accessible websites and
public chat rooms, 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. The
attorney general stated in his brief that R.C. 2907.31(D)(2) "exempts from
prosecution people who transmit material harmful to juveniles 'by means of a
method of mass distribution' when the 'method of mass distribution does not
provide the person the ability to prevent a particular recipient from receiving the
information.' R.C. 2907.31(D)(2)(b)." We conclude that a person who posts
matter harmful to juveniles on generally accessible websites and in public chat
rooms does not violate R.C. 2907.31(D), because such a posting does not enable
that person to "prevent a particular recipient from receiving the information.”
{¶ 26} The certified questions and the parties focus on particular types of
electronic communications, namely, e-mail, instant messaging, private chat
rooms, public chat rooms, and generally accessible websites. Our answer is
accordingly constrained by that focus and should not be construed as necessarily
governing other types of electronic transmissions, whether currently in use or
developed in the future.
So answered.
MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
__________________
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January Term, 2010
Sonnenschein, Nath & Rosenthal, L.L.P., Michael A. Bamberger, and
Richard M. Zuckerman; Sirkin, Pinales & Schwartz, L.L.P., H. Louis Sirkin, and
Jennifer M. Kinsley; and Carrie L. Davis, for respondents.
Richard A. Cordray, Attorney General, Benjamin C. Mizer, Solicitor
General, and Elise W. Porter, Assistant Solicitor; and Ron O’Brien, Franklin
County Prosecuting Attorney, and Nick A. Soulas Jr., Assistant Prosecuting
Attorney, for petitioners.
______________________
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