American Booksellers Foundation v. Strickland

• Decision Date: 24 September 2007
• Docket Number: No. 3:02cv210.,3:02cv210.
• Citation: 512 F.Supp.2d 1082
• Parties: AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al., Plaintiffs, v. Ted STRICKLAND,<SMALL><SUP>1</SUP></SMALL> et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 1082

512 F.Supp.2d 1082

AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al., Plaintiffs, v. Ted STRICKLAND,¹ et al., Defendants.

No. 3:02cv210.

United States District Court, S.D. Ohio, Western Division.

September 24, 2007.

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Henry Louis Sirkin, Jennifer M. Kinsley, Sirkin Pinales & Schwartz, Cincinnati, OH, J. Michael Murray, Raymond V. Vasvari, Jr., Berkman Gordon Murray & Devan, Cleveland, OH, Michael A. Bamberger, Sonnenschein Nath & Rosenthal LLP, New York, NY, for Plaintiffs.

Betty D. Montgomery, Carol Anne Hamilton O'Brien, Charissa Diane Payer, Elise W. Porter, Ohio Attorney General, Jeffrey Alan Stankunas, Mark David Landes, Isaac Brant Ledman & Teetor, Ronald Joseph O'Brien, Franklin County Prosecutor's Office, Jeffrey Lynn Glasgow, Columbus, OH for Defendants.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. # 86); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 94); JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANTS, PERMANENTLY ENJOINING OHIO REVISED CODE § 2907.31(D)(1), AS APPLIED TO INTERNET COMMUNICATIONS, AND IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFFS ON PLAINTIFFS' CONSTITUTIONAL CHALLENGES TO §§ 2907.01(E) AND 2907.31(D)(2); TERMINATION ENTRY

WALTER HERBERT RICE, District Judge.

Plaintiffs and Defendants have filed cross motions for summary judgment, regarding the constitutionality of Ohio Rev. Code §§ 2907.01(E), 2907.31(D)(1) and 2907.31(D)(2), as amended by House Bill 490. Plaintiffs, a group of publishers, distributors, retailers and website distributors, request that this Court enter summary judgment in their favor and permanently enjoin the enforcement of these provisions on the grounds that they are unconstitutionally vague, overbroad and in violation of the First and Fourteenth Amendments to and the Commerce Clause of the United States Constitution. Defendants, the Governor of Ohio, Attorney General of Ohio and prosecuting attorneys from each of Ohio's 88 counties, have filed their own motion seeking summary judgment on the grounds that the above statutory provisions do not violate the First and Fourteenth Amendments and the Commerce Clause. Consequently, the Defendants argue that this Court must deny Plaintiffs' request for an injunction.

I. BACKGROUND

A. Procedural

Plaintiffs' instant motion is their second . challenge to amendments made to Ohio's "dissemination of material harmful to juveniles" statute, having previously petitioned this Court for a preliminary injunction against amendments made to § 2907.31 by Ohio House Bill 8. Upon enactment of House Bill 8, Plaintiffs immediately commenced a suit challenging these amendments on the grounds that they violated the First and Fourteenth Amendments to and the dormant Commerce Clause of the United States Constitution. In particular, Plaintiffs objected to the definition of "harmful to juveniles" and to the newly enacted "internet provisions."

This Court subsequently sustained Plaintiffs' request for a preliminary injunction, finding that House Bill 8's definition of "harmful to juveniles" violated the First Amendment on several grounds, Bookfriends, Inc. v. Taft, 223 F.Supp.2d 932 (S.D.Ohio 2002), concluding that: Section 2907.31, as amended by House Bill 8, criminalized the display of material that is clearly protected speech, such as nudity that is not sexually explicit or extremely violent, and that does not contain human bodily functions of elimination, foul language, dismemberment, torture and the glorification of violence and criminal activity (id. at 946);² the language in House Bill 8 did not meet the First Amendment's Miller-Ginsberg test (id. at 946); 2 and the provisions in House Bill 8 failed the strict scrutiny test because its scope reached far beyond its stated purpose of preventing child predators from targeting children on the internet. Id. at 949.

Defendants appealed this Court's decision to the Sixth Circuit. However, before the appeal could be heard, the Ohio General Assembly made significant changes to §§ 2907.01 and 2907.31, with House Bill 490. Upon passage of House Bill 490, Defendants moved for an order from the Sixth Circuit to dismiss their appeal and remand the case to this District Court. On June 20, 2003, the Sixth Circuit granted the request. Bookfriends, Inc. v. Petro, No. 02-4091 (6th Cir. June 18, 2003),³ whereupon Plaintiffs amended their complaint to challenge §§ 2907.01(E), 2907.31(D)(1) and 2907.31(D)(2), as amended by House Bill 490. Shortly thereafter, both parties filed cross motions for summary judgment, the subject of this opinion.

B. Factual

1. The Internet and Sexual Predators

The internet is a network that allows computers to communicate with one another. These communications can consist of one to one communication through the use of e-mail and instant messaging. However, the internet also provides users with the ability to engage in broadcast communication. It permits users to communicate to an unlimited number of people at once, through the use of electronic mailing lists, Usenet news groups, chat rooms and websites on the world wide web. (Prelim. Hr'g Tr. 40-45, 129-135, July 31, 2002).

At the heart of this dispute lies the challenge of how to regulate the internet, a medium of communication that provides its users anonymity. The experts for all parties testified that, at the present time, the nature of the internet makes it virtually impossible to identify the age and geographic location of the sender or the recipient of communications over the internet. (Prelim. Hr'g Tr. 45-46, 147).

Defendants presented compelling evidence that, as a result of the personal and geographic anonymity implicit in internet use, sexual predators are using the internet to prey on child victims. The internet permits sexual predators to easily and repeatedly contact a child in a nonthreatening manner, while simultaneously escaping the notice of parents and law enforcement. (Prelim. Hr'g Tr. 164). Detective Barlow of the City of Xenia Police Department testified that sexual predators use these methods to "groom" children, or condition them to have sexual encounters with adults. (Prelim. Hr'g Tr. 165). Detective Barlow testified that he has been involved in more than 5,000 investigations, regarding the use of the internet by sexual predators to target children, leading to over 50 arrests. (Prelim. Hr'g Tr. 164). Additionally, he testified that the internet provides sexual predators with a larger pool of potential victims, with access to children throughout the United States. Thus, the incidence of "travelers," persons who will travel long distances to engage in sexual intercourse with children, has increased. Id. at 164.

2. House Bill 490 Amendments

The Ohio Assembly passed House Bill 490, amending provisions prohibiting "disseminating matter harmful to juveniles." Defendants assert that the purpose of such amendments was to prohibit the use of the internet by pedophiles in the "grooming" of child victims. (Defs. Mem. in Supp. of Defs. Mot. for Summ. J. 25).

Section 2907.31(A), which sets forth a general prohibition against exposure of harmful matter to juveniles, provides in pertinent part:

(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. ...

As amended by House Bill 490, the phrase "harmful to juveniles" is defined by § 2907.01(E) of the Ohio Revised Code as:

(E) "Harmful to juveniles" means that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sadomasochistic 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.

House Bill 490 also amended two other provisions, dubbed by Plaintiffs as the "internet provisions," the first of which provides:

(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.

Ohio Rev.Code § 2907.31(D)(1). In an apparent effort to limit the scope of that statutory provision, the Ohio legislature drafted the "broadcast communications" exception, set forth in § 2907.31(D)(2), which states that a person "remotely transmitting information by means of a method of mass distribution" does not violate § 2907.31, if either of the following applies:

(a) The...