Booksellers say Ohio law shielding kids from harmful material online is threat to free speech

Booksellers: Law shielding kids goes too far

COLUMBUS, Ohio — The Ohio Supreme Court hears arguments Tuesday in a case that pits defenders of online child protection against advocates of free speech.

It is one of the longest running cases in the country that grapples with how states protect minors from pornography and predators on the Internet without stepping on the rights of adults and older minors to hear, see and read certain protected content.

A pair of federal laws in the 1990s pushing decency restrictions and safety online were struck down as unconstitutional, as have been a host of similar state laws — in Michigan, New Mexico, Arizona, South Carolina, Virginia and Vermont. A similar law in Utah is still pending in court.

“It really speaks to the difficulty of trying to write laws that fit constantly-changing technology,” said Carrie Davis, counsel for the Ohio chapter of the American Civil Liberties Union. “Any time a legislative body tries to pass a restriction on technology, it’s difficult because technology is changing so fast.”

The 6th U.S. Circuit Court of Appeals based in Cincinnati has asked justices to resolve two key legal questions before moving forward on the Ohio lawsuit. The questions involve what is meant by the technical terms contained in the law: “mass distribution” and “personally directed devices.”

Attorneys for the state and Ohio’s 88 county prosecutors argue that the terms direct law enforcement to one-on-one communications between predators and their victims.

Franklin County Prosecutor Ron O’Brien said existing laws allow prosecutors to nab people who prey on kids by electronic means. But he said law enforcement has been denied one additional tool because the law in question has been in limbo for seven years.

“People that engage in visiting the chat rooms and soliciting minors for sex, part of the process whereby they solicit is they move through this progression of ‘Hi, how are you?’ to an exchange of photos and videocams and other means via computers,” he said. “We can’t capture those transmissions as readily without this law. That doesn’t mean we can’t prosecute the crime, but it’s an additional count against someone that we don’t have available.”

David Horowitz, executive director of the New York-based Media Coalition that is representing a group of booksellers, said that if similar state laws had been allowed to stand, they essentially would have given minors veto power over places on the Internet. He gave as examples instances in which Web site owners could be prosecuted when minors access illegal content or adult participants in chat rooms or on listservs would be forced to tone down the discussion or exit if a minor joined them..

“The Internet can’t be dumbed down to solely what’s appropriate for minors,” he said.

Horowitz said during testimony in district court that prosecutors acknowledged that they had successfully prosecuted 53 of 53 online child endangerment cases using existing laws.

“We’re not sure that they don’t have the tools they need without these laws,” he said.

Pam Greenberg, a researcher who studies Internet issues for the National Conference on State Legislatures, said few if any additional states have tried to address technology issues in their laws on the dissemination of harmful materials after courts have struck down so many others.

She said they have more success with laws outlawing luring children into sexual activity via electronic means. After a few of those laws stood up to court challenges, 46 states now have something similar on their books.

After the Supreme Court rules on the two legal questions, the case returns to the 6th Circuit for further review.