It's no surprise that politicians are rarely conversant with the limits on their legislating found in the U.S. Constitution. But it is worth noting when federal judges have actually read the First Amendment and strike down a law accordingly.
That brings us to Ohio's constitutionally impaired legislature, which enacted two laws that were touted as ways to protect children on the Internet but in reality would become a new censorship regime.
An Ohio federal judge on Monday struck down (see PDF) the state's combined "harmful to minors" law on the grounds that it ran afoul of the First Amendment's guarantee of freedom of speech.
2709.31(A) of the law generally says "no person" shall "disseminate" or offer to disseminate to a "juvenile" any material that is "harmful to juveniles." Ohio's House Bill 490 amended it by defining electronic dissemination as having "reason to believe that the person receiving the information is a juvenile."
You can see where this is going. Let's say that one-sixth of the Internet's users are minors. That means that for almost any Web site, assuming the audience is representative, the operator has reason to believe that something like one-sixth of them are under 18 years old. (There's another section that tries to limit that requirement's sweep, but in practice it wouldn't amount to much.)
Fortunately, U.S. District Judge Walker Herbert Rice realized this. Rice said the definition of "harmful to juveniles" does not by itself violate the First Amendment and that it does not violate the Commerce Clause.
But he ruled that, in practice, applying that definition to the Internet is overly broad. In particular, he said, sexually explicit conversations in adults-only chat rooms (where a minor sneaks in) could be prosecuted. It would "act as a ban to that segment of speech between adults which is protected by the First Amendment."
This is consistent with other judges' rulings on "harmful to minors" or "harmful to juveniles" Internet statutes. The 2nd Circuit overturned Vermont's; the 10th Circuit overturned New Mexico's. In this case, Judge Rice granted a permanent injunction. He had, by the way, already granted an injunction in the case based on the earlier version of the law, but the proceedings essentially restarted after the law was changed around four years ago.
The plaintiffs include the National Association of Recording Merchandisers, the American Booksellers Foundation for Free Expression, and the Association of American Publishers, and it was brought by their trade association called the Media Coalition.
If the appeals court upholds this ruling, the Media Coalition may be able to get attorneys' fees--which amounted to a requested $488,601 in a similar Internet censorship suit in Virginia. And that's not even counting proceedings before an appeals court, which has already happened (briefly) in the Ohio case but didn't in Virginia.
The problem is that when Ohio politicians enact unconstitutional laws, and subsequently lose in court, taxpayers end up footing the bill. It would be a far more just system if politicians were held personally responsible for paying their fair share of a half-million dollar fine for their constitutional ignorance. I'm sure Ohio politicos would have no objection--right?