Citing First Amendment Violation, Federal Judge Blocks Enforcement of Ohio Legislation

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A federal judge has blocked enforcement of an amended portion of the state of Ohio's sex offence law, which had extended the definition of material deemed "harmful to juveniles" to include certain computer-based content. The law -- passed by the Ohio legislature in February and signed by Governor Bob Taft in May -- was challenged in U.S. District Court by a broad-based coalition, which included the American Booksellers Foundation for Free Expression (ABFFE) and Dayton bookstore Wilkie News.

On August 2, Chief Judge Walter Herbert Rice issued a temporary restraining order, which blocks the state from enforcing the law, and he noted in his ruling that he expects to rule in favor of the plaintiffs' motion for a preliminary injunction by August 16.

On Wednesday, July 31, Michael A. Bamberger, co-counsel for the plaintiffs in the lawsuit and general counsel for Media Coalition, had argued two main points before the court. First, that the application of the law to the Internet presented the same Constitutional violations that had caused the courts in six U.S. states to declare similar legislation unconstitutional. Second, he noted that Ohio's definition of "harmful to juveniles" -- even before it was extended to cyberspace -- was unconstitutionally overbroad.

The court agreed. Judge Rice wrote in the ruling that "the definition of ‘harmful to juveniles' … is substantially overbroad in violation of the First Amendment." As a result, he noted that "the statute criminalizes conduct and expression otherwise lawful, as protected by the First Amendment to the United States Constitution." If the law were allowed to stand, Judge Rice wrote, it would "sweep within its ambit … not only predators, the avowed targets of the legislation, but also publishers, booksellers, and others who disseminate materials to juveniles which are fully protected by the First Amendment."

Bamberger noted to BTW that "we are most gratified that the court recognized the variety of First Amendment problems with the Ohio statute." Jim Latham, who, along with his wife, Pat, owns Wilkie News, said, "I am happy that we have gotten the temporary restraining order. It concerns me greatly that the politicians are out there trying to control what people are trying to read, or hear, or see."

In addition to Wilkie News and ABFFE, other plaintiffs in the complaint include: Association of American Publishers; Freedom to Read Foundation; National Association of Recording Merchandisers; Ohio Newspaper Association; Sexual Health Network, Inc.; and Video Software Dealers of America.

Along with Bamberger, H. Louis Sirkin, of Sirkin, Pinales, Mezibov, and Schwartz, is co-counsel for the plaintiffs. Raymond Vasvari of the ACLU of Ohio and J. Michael Murray of Berkman, Gordon, Murray & De Van of Cleveland, Ohio, are of counsel.