“It’s not really the statute that’s confusing here, it’s the technologies.”

by on October 23, 2009 · 2 comments

Just read this AP article that reported on a Tuesday hearing of the Ohio Supreme Court about an Ohio “harmful to minors” law. According to the article, the statute makes it illegal to distribute harmful material to minors through “direct communications by people who know or have reason to believe the recipient is a minor.”

The case is in the 6th Circuit Court of Appeals, which has asked the Ohio Supreme Court to interpret “mass distribution” and “personally directed devices.” Per the law:

2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, [etc.] … if either of the following applies:

(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.

In the hearing (see the video) Justice Robert Cupp coins this beauty of a statement:  “It’s not really the statute that’s confusing here, it’s the technologies.” Judge say what?

Isn’t the whole point of a statute to be applied to factual situations? Anything can make sense in the abstract (even law!). But applied to everyday life, the simplistic becomes complex — and can have unintended consequences.

Such is especially true with laws that regulate Internet communications. The Ohio AG is attempting to narrow the statute by saying it applies only in situations where a speaker (1) directly communicates the harmful material, (2) knowing or has reason to know the recipient is a minor, and (3) the speaker has control over the medium — ie. not applicable to general broadcasting (forums or chat rooms) but applicable where publishers can exclude or limit the audience (direct email).

Are these limitations enough to not cover legitimate communications on the Internet? The Plaintiff, American Booksellers Foundation for Free Expression, wants an exemption for the Internet. I generally think that it is best to not bifurcate the Internet and non-Internet worlds, particularly when we think of child safety issues (digital natives see the Internet as an extension of everyday life much more than us old fogies).

Media Coalition has a page dedicated to the case here. Stay tuned.

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