Ohio court: Online child porn law affects private chat, IMs, e-mail but not public Web sites

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Ohio high court narrowly interprets anti-porn law

COLUMBUS, Ohio — The Ohio Supreme Court has narrowly interpreted a state law aimed to protecting children from online pornography and predators, delivering a partial blow to free-speech advocates who wanted it thrown out as unconstitutional.

A coalition led by the American Booksellers Foundation for Free Expression also claimed the Wednesday ruling as a partial victory, saying their legal challenge had succeeded in getting the state to voluntarily limit the effects that state restrictions might have had on Internet content.

In its unanimous decision, the court said a 2004 law extending the state’s definition of “material harmful to minors” to the Internet is clearly intended to apply only to person-to-person communications — not to generally accessible Web sites and public chat rooms.

“We conclude that a person who posts matter harmful to juveniles on generally accessible websites and in public chat rooms does not violate (the law), because such a posting does not enable that person to ‘prevent a particular recipient from receiving the information,’” Justice Paul Pfeifer wrote in the decision.

The decision went against the booksellers’ coalition, which has successfully challenged similar statutes around the country — including Vermont, New York, Virginia, South Carolina, Arizona and New Mexico.

The group had argued the law could be applied broadly to online material and erode the constitutional free speech rights of online booksellers, newspaper publishers and video game dealers. Technology, they say, can’t always keep the harmful information from children.

The high court’s legal interpretation now goes back to the 6th U.S. Circuit Court of Appeals based in Cincinnati, which is considering the larger constitutional question.

The lower court had asked justices to resolve two key legal questions before moving forward on the booksellers’ lawsuit. The questions involved what is meant by the technical terms contained in the law: “mass distribution” and “personally directed devices.” On both questions, the court sided with Ohio Attorney General Richard Cordray’s arguments that the law is intended to be narrowly interpreted.

“Based on our understanding of generally acceptable websites and public chat rooms,” Pfeifer wrote, “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.”

In a statement, the free speech coalition said it was pleased that the court “accepted the Ohio Attorney General’s belated recognition that the statute was too broad, and should be construed narrowly” but remained concerned that many questions remain unanswered as to how it will apply to online content.

For example, newspaper Web sites that charge fees or university alumni sites that require a password might be deemed private venues where the posting of non-obscene adult material could be prosecuted. And the decision makes no determination on how social-networking sites such as Twitter or Facebook could be affected by the content limits.

“The decision is a step in the right direction, but still fails to make sure that the Ohio statute does not infringe free speech,” the statement said.

A federal district court where the suit originated put enforcement of the law on hold after concluding its wording was overbroad and in violation of the First Amendment. That decision was appealed to the 6th Circuit.

This is the second challenge by booksellers, newspaper publishers and others of the status. State lawmakers specifically amended the initial statute in an attempt to address First Amendment issues and avoid litigation.