Lawsuit tests Ohio's new Internet pornography law

5/7/2002

COLUMBUS - Gov. Bob Taft's signature on a new law designed to crack down on child pornography via the Internet was barely dry yesterday when a federal lawsuit was filed challenging its constitutionality.

A coalition including bookstore owners, the Ohio Newspaper Association, and video stores filed the suit arguing that the law's broad language in another section about allowing children to view material “harmful to juveniles” might be construed to include foul language, nonobscene sexual situations, and violence in mainstream novels and movies.

The law, which will go into effect on Aug. 6 barring a court injunction, updates Ohio's 28-year-old Sex Offense Law to cover electronic images viewed or stored on computer hard drives, floppy disks, and other recording devices. That list of materials already includes books, newspapers, magazines, movies, pictures, and other tangible media.

“The Internet brings the world to our doorstep, into our living rooms, and even into our children's bedrooms,” Mr. Taft said. “Electronic commerce through the Internet and the worldwide web is a powerful tool for good and evil. And now ... Ohio's law is updated to protect our children in the computer age.”

The lawsuit, filed in U.S. District Court in Dayton, claims the law would violate the First Amendment right of free speech and tries to impose restrictions on the web in violation of interstate commerce protections.

Mr. Taft said he expected the court challenge and believes Ohio's law will survive. He stressed that it is aimed at sex offenders who use cyberspace to intentionally prey on children and does not target mainstream bookstores or movie producers.

“Not unless they have a specific intent to target juveniles and their acts are harmful to juveniles,” he said.

Michael A. Bamberger, New York attorney for the book and video store trade associations, filed the suit alleging censorship. He was involved in lawsuits in four of five states where similar laws have been struck down, largely on the grounds that states can't regulate the Internet.

“The reason the Ohio newspaper publishers are a plaintiff is their concern that talking about massacres in Rwanda and murders in Columbus might fall within this broad definition,” said Mr. Bamberger. His clients do not include adult establishments.

“We're concerned about photos used in a newspaper which become part of the Internet version of a newspaper,” said Frank Deaner, executive director of the newspaper association.

“Depending our how the definitions would be applied, newspapers or staffs could be prosecuted for nothing more than journalistic practices.”

He said he knows of no cases where newspaper employees have been prosecuted under the law as it applies to tangible print media.

“Just because no one has been prosecuted yet, doesn't mean it can't or won't happen,” said Mr. Deaner.

Mr. Bamberger said the expanded language about allowing juveniles to view “material harmful to juveniles” is so vague that it also could endanger bookstores that permit teenagers to flip through a book.

“Much of the fine literature and novels and nonfiction carried by my and other bookstores feature descriptions of what one might consider violence, cruelty, or brutality, or include repeated use of ‘foul language' that some might consider inappropriate for younger teens,” said Dayton bookstore owner Jim Latham, a plaintiff.

“Under this law, I could be prosecuted for permitting minors to buy or even browse such material, all of which is protected by the First Amendment,” he said. “This is an intolerable situation.”

Ohio's law attempts to skirt constitutional problems associated with regulating the Internet by focusing on images and other material before they are sent and after they are received, even if they are viewed on a computer monitor and never downloaded onto the hard-drive or disk.