Arizona Court Win May Affect Fate of Similar Bill in Ohio

On February 19, Arizona U.S. District Judge Alfredo C. Marquez permanently enjoined the Arizona statute criminalizing the intentional transmission over the Internet of materials considered to be "harmful to minors." The court found the statute to be unconstitutional under both the Commerce Clause of the U.S. Constitution and the First Amendment.

"I was relieved [by the ruling]," said Gayle Shanks, owner of Changing Hands bookstore in Tempe, Arizona, one of plaintiffs in the Arizona case. "We have a Web site, and the issue would have touched us closely. We have books listed online that we could have potentially been prosecuted for [if the bill hadn’t been struck down]." Other plaintiffs in the case included the American Booksellers Foundation for Free Expression (ABFFE), the Association of American Publishers, and Freedom to Read, to name a few. The Media Coalition represented the plaintiffs.

In a related story, in Ohio, House Bill 8, which amends part of the state’s sex-offense law, awaits either the signature or veto of Governor Bob Taft. The proposed legislation would amend Ohio’s sex offence law to include computer-based material that is deemed harmful to minors. This could include such things as sexually explicit content or movie violence.

While sources close to the situation claim that political pressure will ultimately force Taft to sign the bill, the governor’s spokesperson Joe Andrews acknowledged it is conceivable the Arizona ruling could influence the governor’s decision. "The governor has stated that he agrees with [H.B. 8], barring any legal issues," Andrews told BTW. "[The Arizona decision] is one of the things our folks will be looking at. It could possibly play into it."

Certainly, legal precedent indicates that H.B. 8 would face a difficult time in court. "It is remarkable how state after state has passed this Internet bill knowing that it has been repeatedly declared unconstitutional. We hope Ohio won't make the same costly mistake," said Chris Finan, president of ABFFE.

A legal loss can be expensive. For example, the states of New York (American Libraries Association v. Pataki) and New Mexico (ACLU v. Johnson) were required to pay over $450,000 and $460,000, respectively, in legal fees and costs to plaintiffs. The court costs in the Arizona case have yet to be determined.

Not surprisingly -- considering the similarities between H.B. 8 and the Arizona statute that was just shot down -- the Media Coalition is urging Taft to veto the bill or to expect a challenge from its members. In the May 2001, Columbus, Ohio-based Fraternal Order of Police News [1], the bill’s sponsor, Rep. Jim Hughes, wrote that the bill closed "loopholes in current state law regarding child pornography … and makes Ohio a safer place for children."

Members of the Media Coalition, however, claim that amendments in the bill are too vague to be constitutional. Moreover, this lack of clarity will ultimately threaten commerce on the Internet, and would also keep adults from being able to view First Amendment-protected materials on the Internet.

In a letter regarding H.B. 8, dated February 13, 2002, to Governor Taft, Michael Bamberger, general counsel of the Media Coalition, stated:

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 the Internet is generally available and cannot be geographically restricted…. Thus, a regulation imposed by Ohio has nationwide, even worldwide, impact."

On Friday, February 22, a second letter was sent to Taft, informing the governor of the Arizona decision.

Also hoping Governor Taft vetoes H.B. 8 is the Motion Picture Association of America, Inc. (MPAA), since under H.B. 8, violence or sexual situations in film available on the Internet could be deemed a criminal act. "[H.B. 8] is of increasing concern to us," said Todd Flourney, counsel and director of state legislative affairs, for MPAA. "[The law] could mean any depiction of violence, such as Black Hawk Down" could be prosecuted.

Flourney added that the MPAA worked with the Senate Judiciary Chair to draft a compromise to H.B. 8, but it didn’t work out. The Senate passed H.B. 8 in March. Now, it is just a matter of waiting for Governor Bob Taft’s decision. -- David Grogan [2]