American Booksellers Foundation for Free Expression v. Strickland

601 F.3d 622 (6th Cir. 2010), rev’g 512 F. Supp. 2d 1082 (S.D. Ohio 2007); questions certified to Ohio Supreme Court, 560 F.3d 443 (6th Cir. 2009), certified questions answered sub nom. Am. Booksellers Found. for Free Expression v. Cordray, 124 Ohio St. 3d 329, 2010-Ohio-149, 922 N.E.2d 192 (2010)

Previous case names:
Bookfriends, Inc. v. Taft, 223 F. Supp. 2d 932 (S.D. Ohio 2002), Bookfriends, Inc. v. Petro, No. 02-4091 (7th Cir. June 18, 2003), also American Booksellers Foundation for Free Expression v. Dann and American Booksellers Foundation for Free Expression v. Cordray

Summary:
In April 2010, the United States Court of Appeals for the 6th Circuit upheld an Ohio “harmful to minors” statute as severely limited, so that it does not apply to websites, listservs or public chatrooms, and is limited to “personally directed” communications, such as emails and instant messages.

History:

Lawsuit filed
On May 6, 2002, Media Coalition filed a lawsuit on behalf of some of its members, local booksellers and other organizations in the U.S. District Court for the Southern District of Ohio challenging an Ohio statutory amendment. One part of the law defines “harmful to juveniles” to include violence, cruelty, foul words and glorification of crime. Another part is a provision that would apply to restrictions of “harmful to minors” material to the Internet. The case was filed as Bookfriends v. Taft.

On August 2, 2002, U.S. District Judge Walter Rice issued a preliminary injunction, because the statute is overbroad and could causes irreparable harm to the plaintiffs if enforced.

Law is amended
The State of Ohio filed an appeal in the United States Court of Appeals for the 6th Circuit. Before the appeal is heard, however, Ohio legislature passed House Bill 490, which amended the concerns with the new definition of “harmful to juveniles.” The bill, however, still applied the state’s harmful to minors law to the Internet.

The State of Ohio made a motion in the 6th Circuit to remand the case to the U.S. District Court. The 6th Circuit granted the motion.

On August 6, 2003, Media Coalition filed an amended complaint in the U.S. District Court, arguing that restrictions on the Internet targets speech that is constitutionally protected for adults and minors. On September 27, 2004, Judge Rice issued a brief ruling in the case and noted that an expanded opinion will come at a later date.

On September 24, 2007, Judge Rice issued his opinion in the case, finding that the Ohio law is unconstitutional as applied to the Internet. The State of Ohio filed an appeal. Media Coalition filed a cross-appeal to the court’s decision that the law is not void for vagueness or for violating the Commerce Clause.

Questions certified
On March 19, 2009, the 6th Circuit issued an order asking the Ohio Supreme Court to certify two questions:

(1) Is the Attorney General correct in construing the Ohio statute to limit the scope of the “harmful to minors” provision, as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person emails, and private chat rooms?

(2) Is the Attorney General correct in construing the Ohio statute to exempt from liability material posted on generally accessible websites and in public chat rooms?

On January 27, 2010, the Ohio Supreme Court answered both certified questions in the affirmative, adopting the narrow construction of the statute.

The 6th Circuit requested supplemental briefs from counsel in light of the Ohio Supreme Court responses to the certified questions. Media Coalition’s brief argued that an ambiguity in the Ohio Supreme Court’s decision could be read to leave in doubt the question of whether the statute applied to mailing lists, listservs and websites that may not be considered “generally accessible.”

On April 15, 2010, the 6th Circuit upheld the Ohio statute as severely limited. The Court ruled that the Ohio Supreme Court’s decision should be read to limit the statute to “personally directed” communications such as person-to-person emails and instant messages, and that the statute did not apply to websites (including those that might not be considered generally accessible), public chatrooms, mailing lists and listservs.

Plaintiffs:
Bookfriends, Inc. (d/b/a Wilkie News), American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, Video Software Dealers Association (now Entertainment Merchants Association), National Association of Recording Merchandisers (now Music Business Association), Ohio Newspaper Association and The Sexual Health Network