American Booksellers Foundation v. Strickland

• Decision Date: 15 April 2010
• Docket Number: 07-4376.,No. 07-4375,07-4375
• Citation: 601 F.3d 622
• Parties: AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, Association of American Publishers, Inc., Freedom to Read Foundation, National Association of Recording Merchandisers, Ohio Newspapers Association, Sexual Health Network, Inc., Video Software Dealers Association, Web Del Sol, Marty Klein, Plaintiffs-Appellees/Cross-Appellants, v. Ted STRICKLAND, Defendant, Richard Cordray, Ron O'Brien, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

601 F.3d 622

AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, Association of American Publishers, Inc., Freedom to Read Foundation, National Association of Recording Merchandisers, Ohio Newspapers Association, Sexual Health Network, Inc., Video Software Dealers Association, Web Del Sol, Marty Klein, Plaintiffs-Appellees/Cross-Appellants, v. Ted STRICKLAND, Defendant Richard Cordray, Ron O'Brien, Defendants-Appellants/Cross-Appellees.

Nos. 07-4375, 07-4376.

United States Court of Appeals, Sixth Circuit.

Argued: December 12, 2008.

Decided and Filed: April 15, 2010.

ARGUED: Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Michael A. Bamberger, Sonnenschein Nath & Rosenthal LLP, New York, New York, for Appellees. ON BRIEF: Benjamin C. Mizer, William P. Marshall, Michael Dominic Meuti, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. Michael A. Bamberger, Sonnenschein Nath & Rosenthal LLP, New York, New York, Jennifer M. Kinsley, H. Louis Sirkin, Sirkin, Kinsley & Nazzarine, Cincinnati, Ohio, for Appellees.

Before MARTIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiffs sued Ohio's Attorney General and county prosecutors, arguing that Ohio Revised Code § 2907.31(D)(1), which criminalizes sending juveniles material that is harmful to them, is unconstitutional under the First Amendment and Commerce Clause. The district court permanently enjoined its enforcement "as applied to internet communications" on the basis that it is overbroad in violation of the First Amendment. Am. Booksellers Found. for Free Expression v. Strickland, 512 F.Supp.2d 1082, 1106 (S.D.Ohio 2007). Defendants appealed and plaintiffs cross-appealed the district court's decision that the law is not void for vagueness and does not violate the Commerce Clause. We certified the question of the scope of the statute to the Ohio Supreme Court. Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir. 2009). The Ohio Supreme Court issued an opinion stating that the statute applied only to personally directed electronic communications and that it did not apply to generally accessible communications. Am. Booksellers Found. v. Cordray, 124 Ohio St.3d 329, 922 N.E.2d 192, 195 (2010). As the scope of the statute is limited to personally directed electronic communications, as currently available or developed in the future, we find that the statute does not violate the First Amendment or the Commerce Clause. For the reasons set forth below, we REVERSE the district court's entry of judgment for the plaintiffs and REMAND the case to the district court with instructions to vacate the permanent injunction and enter judgment for defendants.

I.

Plaintiffs, who include publishers, retailers, and web site operators, originally filed a lawsuit in 2002 seeking to enjoin defendants from enforcing O.R.C. § 2907.01(E) & (J) (2002), which, at that time, prohibited the dissemination or display of "materials harmful to juveniles." The district court granted a preliminary injunction because the statute's definition of "harmful to juveniles" did not comport with the Supreme Court's test in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), as previously applied to juveniles in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), commonly referred to as the Miller-Ginsberg test. Bookfriends, Inc. v. Taft, 223 F.Supp.2d 932, 945 (S.D.Ohio 2002). To determine whether something is obscene, the Miller-Ginsberg test asks:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 872, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (quoting Miller, 413 U.S. at 24, 93 S.Ct. 2607). Defendants appealed, but before this Court heard the case, the Ohio General Assembly amended the statute in 2003. As a result, this Court remanded the case to the district court.

As amended, Section 2907.31(A) now provides:

(A) No person, with knowledge of its character or content, shall recklessly do any of the following:

(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;

(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;

(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.

Section 2907.01(E) defines "harmful to juveniles":

(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:

(1) The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex.

(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.

(3) The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.

The two "internet provisions," sections 2907.31(D)(1) and (2), provide: (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.

(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:

(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.

Back in the district court, plaintiffs amended their complaint to challenge the statute as revised, and in 2003 the parties filed cross-motions for summary judgment. The district court granted both parties' motions in part and denied them in part in 2004, but it did not file its decision until September 2007. It permanently enjoined the enforcement of O.R.C. § 2907.31(D) as applied to internet communications. Am. Booksellers, 512 F.Supp.2d at 1106. The court determined that the law violated the First Amendment because the internet provisions were unconstitutionally overbroad, id. at 1095, and because the statute failed strict scrutiny. Id. at 1097. The district court also concluded that the definition of "harmful to juveniles" in the new statute conformed to the Miller-Ginsberg standard, id. at 1092, and thus rejected plaintiffs' void-for-vagueness challenge. Id. at 1099. Finally, the court also rejected a challenge under the Commerce Clause. Id. at 1105. Defendants appealed and plaintiffs cross-appealed.

On March 19, 2009, following oral argument, we sua sponte certified the following questions to the Supreme Court of Ohio for review:

(1) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to limit the scope of § 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?

(2) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?

Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir.2009).

On January 27, 2010, the Ohio Supreme Court answered both questions in the affirmative, holding "that the scope of section 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." Am. Booksellers Found. v. Cordray, 124 Ohio St.3d 329, 922 N.E.2d 192, 195 (2010). The court went on to hold that "a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate section 2907.31(D), because such a posting does not enable that person to `prevent a particular recipient from receiving the information.'"...