A Busy Day in Dayton: Taft Signs H.B. 8; Media Coalition Immediately Challenges

On Monday, May 6, Ohio Governor Bob Taft signed House Bill 8 (H.B. 8), legislation that amends Ohio’s sex offence law to include computer-based material that is deemed harmful to juveniles. On the same day, a broad-based coalition -- which includes the American Booksellers Foundation for Free Expression (ABFFE) and Dayton, Ohio, bookstore Wilkie News -- filed a lawsuit in U.S. District Court in Dayton challenging the statute’s constitutionality. H.B. 8 is due to go into effect on August 6, 2002. Next month, the plaintiffs will make a motion for preliminary injunction and will ask for a hearing in July.

"The ramifications [of this law] are the beginnings of an almost Orwellian censorship," said Jim Latham, who, along with his wife, Pat, owns Wilkie News. "This could force booksellers to self-censor, or else we’ll have to card people at the door [to make sure they’re over 18]."

Rep. Jim Hughes (R-Columbus), the bill’s sponsor, intended that H.B. 8 close the loophole in Ohio law to make it possible to convict offenders for using the Internet to solicit sex from a minor. However, opponents argue that the language of the bill is too vague to be constitutional and does not specifically mention luring minors.

"One of the biggest problems with the new Ohio law is that it defines ‘harmful to minors’ so broadly that a bookseller could be arrested for selling a minor a work that makes repeated use of ‘bad language’ or that ‘glamorizes’ criminal conduct," said Chris Finan, president of ABFFE. "Moreover, it applies not just to cyberspace but to bricks-and-mortar stores." As a result, an Ohio bookseller could potentially be prosecuted simply for carrying "offensive" literature, magazines, or even newspapers (which depict death and crime each day).

"A graphic example is Dead Man Walking," explained Michael A. Bamberger, co-counsel for the plaintiffs in the lawsuit and general counsel for Media Coalition, a trade association that defends businesses’ First Amendment rights. "Helen Prejean’s descriptions of executions are about as vivid a description of death that one would want to read. So, Ohio booksellers could get in trouble for selling it to a minor or simply letting a minor peruse it. Or, if somebody gets upset over what a bookstore is selling -- something they disagree with, maybe a book on gay sex, or abortion -- they could bring it to the attention of the authorities."

In response to the law, Wilkie News’s Latham told Bookselling This Week that he’s created a display at the front of his store of just some of the numerous titles that, under H.B. 8, he could potentially be prosecuted for selling. This includes The Bell Jar by Sylvia Plath, Carrie by Stephen King, A Time to Kill by John Grisham, This Side of Paradise by F. Scott Fitzgerald, and the 2002 Pulitzer Prize-winning Empire Falls by Richard Russo.

In a press statement, the plaintiffs noted that even if the law dealt only with graphic sexual material, "the application of the law to the Internet remains unconstitutional," because "all speech and content existing on the Internet is accessible within the state of Ohio" and "the broad definition under the Ohio law potentially threatens Internet users nationwide and even worldwide." Similar laws in Vermont, Arizona, New York, New Mexico, and Michigan, which attempted to regulate Internet material deemed "harmful to minors," have been struck down because they were considered to be in violation of both the Commerce Clause and the First Amendment of the U.S. Constitution.

Regardless, Taft spokesman Joe Andrews said that the governor is confident that the statute will withstand a legal challenge, as reported by Cleveland’s The Plain Dealer. The paper also quoted Hughes as calling the plaintiffs’ accusation "laughable" and saying that "this bill protects children, families, and our community."

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.

For more information on this subject, visit the Media Coalition’s site located at www.mediacoalition.org or Governor Bob Taft’s site at www.state.oh.us/gov/. --David Grogan