Bookfriends, Inc. v. Talt, No. C-3-02-210.
| Decision Date | 30 August 2002 |
| Docket Number | No. C-3-02-210. |
| Citation | 223 F.Supp.2d 932 |
| Parties | BOOKFRIENDS, INC., D.B.A. Wilkie News, et al., Plaintiffs, v. Bob TAFT, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Henry Louis Sirken, Jennifer M. Kinsley, Sirkin Pinales Mezibov & Schwartz, Cincinnati, OH, Michael A. Bamberger, New York City, J. Michael Murray, Berkman Gordon Murray & Devan, Raymond V. Vasvari, Jr., Cleveland, OH, for Plaintiffs.
Carol Anne Hamilton O'Brien, Charissa Diane Payer, Elise W. Porter, Betty D. Montgomery, Ohio Attorney General, Columbus, OH, for Defendants.
DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOC. # 27); DECISION AND ENTRY OVERRULING DEFENDANTS' MOTION TO STRIKE (DOC. # 41); DECISION AND ENTRY SUSTAINING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (DOC. # 42); DECISION AND ENTRY OVERRULING DEFENDANTS' MOTION TO CERTIFY QUESTIONS TO THE OHIO SUPREME COURT (DOC. # 43); PRELIMINARY INJUNCTION ENTERED; CONFERENCE CALL SET
The Plaintiffs bring this action challenging the constitutionality of House Bill No. 8, which amended and reenacted certain provisions of the Ohio Revised Code. Those provisions prohibit the dissemination, etc., of materials to juveniles which come within the definition of "harmful to juveniles." House Bill No. 8 made these provisions expressly applicable to the internet for the first time. The Plaintiffs include a local bookseller, the National Association of Recording Merchandisers, the Ohio Newspaper Association, the operators of internet web sites which offer sexual advice, the Video Software Dealers Association and the operator of an internet web site which offers its users free access to poems, articles, essays, fiction, visual arts and photographs. The Defendants are the Governor and Attorney General of Ohio, as well as the Prosecuting Attorneys for each of Ohio's 88 counties.
In particular, the Plaintiffs contend that the definition of "harmful to juveniles," contained in reenacted § 2907.01(E) of the Ohio Revised Code, violates the First and Fourteenth Amendments to the United States Constitution. In addition, they argue that what they refer to as the "internet provision," primarily § 2907.01(J), violates the First and Fourteenth Amendments to and the Commerce Clause of the United States Constitution.1 Reenacted § 2907.01(E) provides:
(E) Any material or performance is "harmful to juveniles," if it is offensive to prevailing standards in the adult community with respect to what is suitable for juveniles, and if any of the following apply:
(1) It tends to appeal to the prurient interest of juveniles;
(2) It contains a display, description, or representation of sexual activity, masturbation, sexual excitement, or nudity;
(3) It contains a display, description, or representation of bestiality or extreme or bizarre violence, cruelty, or brutality;
(4) It contains a display, description, or representation of human bodily functions of elimination;
(5) It makes repeated use of foul language;
(6) It contains a display, description, or representation in lurid detail of the violent physical torture, dismemberment, destruction, or death of a human being;
(7) It contains a display, description, or representation of criminal activity that tends to glorify or glamorize the activity, and that, with respect to juveniles, has a dominant tendency to corrupt.
Newly enacted § 2907.01(J) provides:
(J) "Material" means one of the following:
(1)(a) As used in section 2907.311 of the Revised Code and in the portions of section 2907.31 of the Revised Code that pertain to materials that are harmful to juveniles but not obscene, "material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, tape, or other tangible thing capable of arousing interest through sight, sound, or touch and, except as provided in division (J)(1)(b) of this section, includes an image or text appearing on a computer monitor or on a television screen, liquid crystal display, or similar display device used as a computer monitor or an image or text recorded on a computer hard disk, computer floppy disk, magnetic tape, or similar storage device.
(b) As used in section 2907.311 of the Revised Code and in the portions of section 2907.31 of the Revised Code that pertain to materials that are harmful to juveniles but not obscene, both of the following apply:
(I) Except as otherwise provided in division (J)(1)(b)(ii) of this section, "material" does not include an image or text that appears on a computer monitor or on a television screen, liquid crystal display, or similar display device used as a computer monitor while the monitor, screen, display, or device is actively connected to a web site on the internet. (ii) "Material" includes an image or text that appears on a computer monitor or on a television screen, liquid crystal display, or similar display device used as a computer monitor while the monitor screen, display, or device is actively connected to a web site on the internet if the image or text is contained in an email message or if the image or text is so appearing on the monitor, screen, display, or device during a direct presentation to a specific, known juvenile or group of known juveniles. The image or text is "material" under this division only regarding the application of section 2907.311 of the Revised Code and the portions of section 2907.31 of the Revised Code that pertain to materials that are harmful to juveniles but not obscene to the person who sends the e-mail message or who directly presents the image or text to the specific, known juvenile or group of known juveniles.
(2) As used in all provisions of sections 2907.01 to 2907.37 of the Revised Code that are not identified in division (J)(1) of this section, "material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch and includes an image or text appearing on a computer monitor, television screen, liquid crystal display, or similar display device or an image or text recorded on a computer hard disk, computer floppy disk, compact disk, magnetic tape, or similar data storage device.
Section 2907.31 of the Ohio Revised Code makes it illegal for anyone to sell, deliver, furnish, disseminate, provide, exhibit, rent or present to a juvenile materials which come within the definition of "harmful to juveniles," or to allow a juvenile to review or to peruse such materials. Section 2907.311 of the Ohio Revised Code provides that it is illegal to display materials within the definition of "harmful to juveniles" at a commercial establishment, in a manner which can be viewed by juveniles as part of the invited general public.2
Shortly after initiating this litigation, the Plaintiffs filed a motion, requesting a preliminary injunction which would prevent the allegedly unconstitutional portions of House Bill No. 8 from becoming effective on Monday, August 5, 2002, as scheduled.3 See Doc. # 27. The parties have briefed that motion, and, on Wednesday July 31, 2002, the Court conducted an oral and evidentiary hearing on the Plaintiffs' motion. The Court now rules upon the Plaintiffs' request for preliminary injunctive relief.4
In opposing the Plaintiffs' request for a preliminary injunction, the Defendants rely, in part, on the proposition that the statutes in question must be interpreted much more narrowly than the Plaintiffs fear. To support their reading of the legislation, the Defendants have requested that the Court certify four questions to the Ohio Supreme Court, pursuant to Rule XVIII of the Ohio Supreme Court Rules of Practice. As a means of analysis, the Court will initially rule upon the Defendants' request to certify questions to the Ohio Supreme Court, following which it will turn to the Plaintiffs' request for preliminary injunctive relief. However, before engaging in that analysis, the Court will consider the question of whether the Plaintiffs have standing to present their constitutional challenges.5
Although the Defendants have not expressly questioned the Plaintiffs' standing, the Sixth Circuit recently reiterated that "[s]tanding is a jurisdictional requirement and we are under a continuing obligation to verify our jurisdiction over a particular case." In re Troutman, 286 F.3d 359, 363 (6th Cir.2002). See also, Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002). Accordingly, the Court must decide whether the Plaintiffs have standing to bring their constitutional challenge to the pertinent provisions of House Bill No. 8. The requirement for standing flows from Article III, § 2, of the United States Constitution, which grants federal courts jurisdiction over "cases and controversies." In Zurich Insurance Company v. Logitrans, Inc., 297 F.3d 528 (6th Cir.2002), the Sixth Circuit reiterated the familiar three-part test which is applied to ascertain whether a plaintiff has standing:
Id. at 531 (quoting Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1...
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...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 ......
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...conclude that reenacted § 2907.01(E) is readily or fairly susceptible to the meaning posited by defendants." Bookfriends, Inc. v. Taft, 223 F.Supp.2d 932, 943 (S.D.Ohio 2002). Subsequently, after the General Assembly amended the statute to a near identical version to the current version, th......
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