## Facts

- A coalition of booksellers, publishers, and online speakers challenged Ohio’s statute criminalizing dissemination of “material harmful to juveniles,” including by electronic means.
- The challenged provisions prohibited electronically transmitting such material to a juvenile when the sender “knows or has reason to believe” the recipient is a juvenile.
- The plaintiffs argued the law would chill protected adult speech on the Internet and effectively require self-censorship or age-verification mechanisms.
- The federal district court preliminarily enjoined enforcement of the Internet-related provisions, finding them overbroad under the First Amendment; it rejected a dormant Commerce Clause challenge.
- On appeal, the Sixth Circuit certified questions to the Ohio Supreme Court regarding the statute’s scope after legislative amendments.
- The Ohio Supreme Court authoritatively construed the statute to reach only “personally directed” electronic communications (e.g., person-to-person emails, instant messages, private chat rooms) and not generally accessible Internet communications (e.g., public websites, open chat rooms).
- After receiving that narrowing construction, the Sixth Circuit reconsidered the preliminary injunction.

## Issues

1. Whether the statute, as construed to cover only personally directed electronic communications of material harmful to juveniles sent by an adult who knows or has reason to know the recipient is a juvenile, is facially overbroad under the First Amendment.
2. Whether the statute, as so construed, should be evaluated under strict scrutiny or a more deferential standard given its focus on harmful-to-minors material and limited effect on adult-to-adult speech.
3. Whether the statute, as construed, violates the dormant Commerce Clause by regulating interstate Internet communications or imposing undue burdens beyond Ohio’s borders.

## Decision

- The Sixth Circuit reversed the district court’s preliminary injunction and remanded.
- The court held the statute was not unconstitutionally overbroad as limited to personally directed communications to juveniles.
- The court concluded strict scrutiny was not triggered because the statute, as construed, did not significantly burden protected adult-to-adult speech; it primarily targeted communications to minors of material deemed harmful to them.
- The court stated that even if strict scrutiny applied, the statute would likely survive due to Ohio’s compelling interest in protecting minors and the statute’s narrow tailoring as construed.
- The court rejected the dormant Commerce Clause challenge, holding the law’s limited, knowledge-based prohibition on direct transmissions to minors did not impose an impermissible extraterritorial or undue burden on interstate commerce.

## Legal Principles

- Federal courts must apply a state statute as authoritatively construed by the state’s highest court when assessing federal constitutional challenges to that statute.
- A statute is facially invalid for First Amendment overbreadth only if it prohibits a substantial amount of protected speech relative to its legitimate sweep.
- A law limited to personally directed communications to known (or reasonably believed) minors of material defined as harmful to minors is less likely to substantially burden protected adult speech than a law covering generally accessible Internet content.
- Dormant Commerce Clause invalidation requires a showing of impermissible extraterritorial regulation or undue burdens on interstate commerce; a narrowly drawn prohibition on direct transmissions to minors with a scienter element may fall within permissible state authority.

## Conclusion

The Sixth Circuit upheld Ohio’s harmful-to-juveniles statute after the Ohio Supreme Court narrowed it to personally directed electronic communications to juveniles, concluding the law was not facially overbroad and did not violate the dormant Commerce Clause, and therefore reversing the preliminary injunction against enforcement.


Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622 (6th Cir. 2010)