Michael A. Bamberger
February 13, 2002
Governor Bob Taft
77 South High Street, 30th Floor
Columbus, OH 43215-6117
Re:
Ohio House Bill No. 8
Dear Governor Taft:
As General Counsel of The Media Coalition, Inc., I write you to urge that you veto House Bill No. 8 because, simply put, the amendments to §§ 2907.01 and 2907.35 in that bill are unconstitutional. I am particularly qualified to discuss the issue since I was co-counsel in three of the cases cited below, holding similar state statutes unconstitutional. The members of Media Coalition are trade associations representing most of the book and magazine publishers, booksellers, librarians, magazine distributors, movie, recording and video game manufacturers, and recording and video retailers in Ohio and the rest of the United States.
H.B. 8 is unconstitutional in a variety of ways. Initially, the amendment to § 2907.01(J) is so vague as to be unconstitutional. The final sentence of (J)(1)(b)(ii) ends with a phrase beginning with “to the person who” that has a number of possible meanings, none of which seem likely or appropriate to the sentence. In addition, the concepts of “direct presentation” to a juvenile and “actively connected to a web site on the internet” found in (J)(1)(b)(i) and (ii) are vague and insufficiently meaningful to satisfy constitutional requirements for a criminal statute.
In addition to its vagueness, H.B. 8 is also unconstitutional in at least three other respects. The first two relate to its application to material transmitted by the Internet. The addition of computer-based material to Ohio’s pre-existing harmful-to-juveniles statute is unconstitutional because of the significant differences between material transmitted on the Internet and that which is included in a book, magazine or video cassette. Cyberspace is not like a bricks and mortar retail store; by reason of the differences and the nature of the Internet, material transmitted by Internet is generally available and cannot be geographically restricted. The Internet is insensitive to geographic distinctions. Thus, a regulation imposed by Ohio has nationwide, even worldwide, impact. In most Internet fora, it is not technologically possible for an Internet speaker to verify the age of an Internet listener or even to make a reasonable attempt to ascertain the true age of an Internet listener; thus, the Internet can be accessed by juveniles without the knowledge of the speaker.
As a result of these differences, H.B. 8 violates the First Amendment because as a practical matter, it bars speech constitutionally protected as to adults in order to prevent access by minors. The U.S. Supreme Court has already declared unconstitutional a federal law that restricted the availability of matter inappropriate for juveniles on the Internet, Reno v. ACLU, 117 S.Ct. 2329 (1997), and is considering a second law which has already been held unconstitutional by the Third Circuit Court of Appeals. ACLU v. Reno II, 217 F.2d 162 (3d Cir. 2000). In addition, every single court that has considered state laws similar to H.B. 8 that restrict dissemination by Internet of material harmful to juveniles has enjoined the statute. See ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace Communications, Inc. v. Engler, 238 F.3d 420 (6th Cir. 2000); PSInet v. Chapman, 167 F. Supp.2d 878 (W.D. Va. 2001); American Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D. 1997). A similar Arizona statute has also been enjoined under a temporary restraining order by the federal court in Tucson. In many of those cases, a “good faith, reasonable" steps affirmative defense, similar to that provided in § 2907.35(F) was provided. In each case it was found insufficient to make the law constitutional. See, e.g., Reno v. ACLU, 521 U.S. at 881. Further, I know of no “effective” steps as required by the defense found in H.B. 8.
If one were to read the “actively connected” language to exclude websites from the coverage of the statute, which is not what the language says, section (J)(1)(b)(i) continues to impose liability on most e-mails and all communications to listserves, bulletin boards, chat rooms etc., all of which are equally protected by the First Amendment. (The Arizona statute, which has been enjoined by a federal judge, does not apply to websites.)
I understand that the argument has been put forth that H.B. 8 is different from the other state statutes in that it does not refer to the Internet or the World Wide Web. However, § 2907.31 criminalizes the delivering, dissemination, provision, etc. of harmful to juveniles materials to minors. Since material shown on a computer screen is delivered, disseminated, provided, etc. by the sender of such material via the Internet, absent a specific exclusion of Internet materials, it appears that, for all practical purposes, this proposal is no different than the statutes found unconstitutional n the cases cited above.
Not only are laws such as H.B. 8 unconstitutional under the First Amendment, every state court which has considered a similar law has found that it violated the Commerce Clause of the U.S. Constitution, which reserves to Congress the regulation of interstate commerce and prevents a state from imposing laws extraterritorially, a second deficiency of constitutional dimensions.
The final constitutional deficiency relates to the inclusion in H.B. 8 of provisions in the definitions of “harmful to juveniles” and “obscene” which are beyond those constitutionally permitted under Miller v. California, 413 U.S. 15 (1973). Nearly twenty years ago, the 6th Circuit Court of Appeals held that § 2907.1 was constitutional only because the state courts would read it to be limited by Miller. Sovereign News Co. v. Falke, 674 F.2d 484 (6th Cir. 1982), cert. den. 456 U.S. 864. House Bill 8 now would repeal old § 2907.1 and the accompanying jurisprudence, and reenact the patently unconstitutional definitions without the benefit of Falke.
I urge you to veto H.B. 8. I and representatives of Media Coalition’s members have previously advised Senate leaders of the deficiencies discussed above, both in writing and orally, without success. Thus, if H.B. 8 takes effect, members of Media Coalition, as they have in other similar states, would likely challenge it. I should note that, in the Pataki and Johnson cases, in which I was co-counsel, the States of New York and New Mexico were required to pay over $450,000 and $150,000, respectively, in legal fees and costs to plaintiffs. In the PSInet case, in which I am also co-counsel, a fee application of over $460,000 has been filed.
Sincerely yours,
Michael A. Bamberger
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