[Cite as Am. Booksellers Found. for Free Expression v. Cordray, 124 Ohio St.3d 329, 2010-

Ohio-149.] 

AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ET AL. v.

CORDRAY, ATTY. GEN., ET AL. 

[Cite as Am. Booksellers Found. for Free Expression v. Cordray, 

124 Ohio St.3d 329, 2010-Ohio-149.] 

R.C. 2907.31(A) as applied to electronic communications is limited to personally 

directed communications such as instant messages, person-to-person emails, and postings in private chat rooms. 

(No. 2009-0609 — Submitted October 20, 2009 — Decided January 27, 2010.) 

ON ORDER from the United States Court of Appeals for the Sixth Circuit 

Certifying Questions of State Law, Nos. 07-4375 and 07-4376. 

__________________ 

PFEIFER, J. 

{¶ 1} Pursuant to S.Ct.Prac.R. 18.6, we accepted the following questions 

of state law certified by the United States Court of Appeals for the Sixth Circuit: 

{¶ 2} 1. Is the Attorney General correct in construing R.C. 2907.31(D) 

to limit the scope of R.C. 2907.31(A), as applied to electronic communications, to 

personally directed devices such as instant messaging, person-to-person e-mails, 

and private chat rooms? 

{¶ 3} 2. Is the Attorney General correct in construing R.C. 2907.31(D) 

to exempt from liability material posted on generally accessible websites and in 

public chat rooms? 

{¶ 4} For the reasons that follow, we answer each question in the 

affirmative. 

Facts and Procedural History 
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{¶ 5} Respondents, American Booksellers Foundation for Free 

Expression, Association of American Publishers, Inc., Freedom to Read 

Foundation, National Association of Recording Merchandisers, Ohio Newspaper 

Association, Sexual Health Network, Inc., Video Software Dealers Association, 

Web Del Sol, and Marty Klein (collectively, "American Booksellers"), filed a 

lawsuit in 2002 seeking to enjoin the enforcement of R.C. 2907.01(E) and (J). 

The district court granted a preliminary injunction. Bookfriends, Inc. v. Taft

(S.D.Ohio 2002), 223 F.Supp.2d 932, 945. Before the appeal could be heard, the 

General Assembly amended the statute. The new statute, R.C. 2907.31(A), 

provides: 

{¶ 6} "(A) No person, with knowledge of its character or content, shall 

recklessly do any of the following: 

{¶ 7} "(1) Directly sell, deliver, furnish, disseminate, provide, exhibit, 

rent, or present to a juvenile, a group of juveniles, a law enforcement officer 

posing as a juvenile, or a group of law enforcement officers posing as juveniles 

any material or performance that is obscene or harmful to juveniles; 

{¶ 8} "(2) Directly offer or agree to sell, deliver, furnish, disseminate, 

provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law 

enforcement officer posing as a juvenile, or a group of law enforcement officers 

posing as juveniles any material or performance that is obscene or harmful to 

juveniles; 

{¶ 9} "(3) While in the physical proximity of the juvenile or law 

enforcement officer posing as a juvenile, allow any juvenile or law enforcement 

officer posing as a juvenile to review or peruse any material or view any live 

performance that is harmful to juveniles." 

{¶ 10} The term "harmful to juveniles" is defined in R.C. 2907.01(E). It 

provides: 
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{¶ 11} "(E) 'Harmful to juveniles' means that quality of any material or 

performance describing or representing nudity, sexual conduct, sexual excitement, 

or sado-masochistic abuse in any form to which all of the following apply: 

{¶ 12} "(1) The material or performance, when considered as a whole, 

appeals to the prurient interest in sex of juveniles. 

{¶ 13} "(2) The material or performance is patently offensive to prevailing 

standards in the adult community as a whole with respect to what is suitable for 

juveniles. 

{¶ 14} "(3) The material or performance, when considered as a whole, 

lacks serious literary, artistic, political, and scientific value for juveniles." 

{¶ 15} R.C. 2907.31(D) states that the prohibitions of R.C. 2907.31(A) 

apply to electronic forms of communication. It provides: 

{¶ 16} "(D)(1) A person directly sells, delivers, furnishes, disseminates, 

provides, exhibits, rents, or presents or directly offers or agrees to sell, deliver, 

furnish, disseminate, provide, exhibit, rent, or present material or a performance to 

a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or 

a group of law enforcement officers posing as juveniles in violation of this section 

by means of an electronic method of remotely transmitting information if the 

person knows or has reason to believe that the person receiving the information is 

a juvenile or the group of persons receiving the information are juveniles. 

{¶ 17} "(2) A person remotely transmitting information by means of a 

method of mass distribution does not directly sell, deliver, furnish, disseminate, 

provide, exhibit, rent, or present or directly offer or agree to sell, deliver, furnish, 

disseminate, provide, exhibit, rent, or present the material or performance in 

question to a juvenile, a group of juveniles, a law enforcement officer posing as a 

juvenile, or a group of law enforcement officers posing as juveniles in violation of 

this section if either of the following applies: 
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{¶ 18} "(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. 

{¶ 19} "(b) The method of mass distribution does not provide the person 

the ability to prevent a particular recipient from receiving the information." 

{¶ 20} The parties filed cross-motions for summary judgment, and in Am. 

Booksellers Found. for Free Expression v. Strickland (S.D.Ohio 2007), 512 

F.Supp.2d 1082, 1106, the federal district court permanently enjoined the 

enforcement of R.C. 2907.31(D). The court concluded that R.C. "2907.31(D)(1) 

is overbroad in violation of the First amendment" and "violates the strict scrutiny 

test of the First Amendment." Id. at 1094 and 1097. The court also concluded 

that "the phrase 'patently offensive to prevailing standards in the adult community 

with respect to what is suitable for juveniles' in [R.C.] 2907.01(E) is not 

unconstitutionally vague." Id. at 1099. The district court also concluded that R.C. 

2907.31(D)(1) does not violate the Commerce Clause. Id. at 1105. 

{¶ 21} The case was appealed to the Sixth Circuit Court of Appeals. 

During its consideration of the appeal, the court determined that the relevant 

statutes are "susceptible of a construction by [this court] 'which might avoid in 

whole or in part the necessity for federal constitutional adjudication, or at least 

materially change the nature of the problem.' " Bellotti v. Baird (1976), 428 U.S. 

132, 147, 96 S.Ct. 2857, 49 L.Ed.2d 844, quoting Harrison v. Natl. Assn. for the 

Advancement of Colored People (1959), 360 U.S. 167, 177, 79 S.Ct. 1025, 3 

L.Ed.2d 1152. Accordingly, it certified the two questions set forth above to us, 

which we now answer. 

Analysis 

{¶ 22} R.C. 2907.31 generally prohibits the dissemination of matter that is 

harmful to juveniles. The specific provisions before us address the dissemination 

of matter harmful to juveniles by "an electronic method of remotely transmitting 
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information." R.C. 2907.31(D). A person cannot be convicted of disseminating 

matter harmful to juveniles by electronic means unless that person "knows or has 

reason to believe that the person receiving the information is a juvenile or the 

group of persons receiving the information are juveniles." R.C. 2907.31(D)(1). 

This general scienter requirement is further qualified in R.C. 2907.31(D)(2), 

which states that a person does not violate R.C. 2907.31(D)(1) if "[t]he person has 

inadequate information to know or have reason to believe that a particular 

recipient of the information or offer is a juvenile" or if "[t]he method of mass 

distribution does not provide the person the ability to prevent a particular recipient 

from receiving the information.” 

{¶ 23} Based on the plain language of R.C. 2907.31(D), we answer both 

certified questions in the affirmative. 

{¶ 24} R.C. 2907.31(D) can be violated only when matter harmful to 

juveniles is transmitted to someone who the sender knows is a juvenile or has 

reason to believe is a juvenile. The statute requires not that the sender know the 

recipient by name, but that the sender know or have reason to believe that the 

recipient is a juvenile. Of particular significance, because the certified questions 

are based on the manner in which the attorney general construes the statutes at 

issue, is a sentence in the attorney general's brief in which he claims that R.C. 

2907.31(D)(2) "clarifies that a person who does not 'know or have reason to 

believe that a particular recipient of the information or offer is a juvenile' does not 

violate the statute upon transmitting harmful-to-juveniles material, even if a minor 

receives it." We conclude that the scope of R.C. 2907.31(D) is limited to 

electronic communications that can be personally directed, because otherwise the 

sender of matter harmful to juveniles cannot know or have reason to believe that a 

particular recipient is a juvenile. 
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{¶ 25} Pursuant to R.C. 2907.31(D)(2), R.C. 2907.31(D)(1) is not violated 

when matter harmful to juveniles is disseminated by a method of mass 

distribution that does not allow the sender to prevent the distribution to particular 

recipients. Based on our understanding of generally accessible websites and 

public chat rooms, they are open to all, including juveniles, and current usage and 

technology do not allow a person who posts thereon to prevent particular 

recipients, including juveniles, from accessing the information posted. The 

attorney general stated in his brief that R.C. 2907.31(D)(2) "exempts from 

prosecution people who transmit material harmful to juveniles 'by means of a 

method of mass distribution' when the 'method of mass distribution does not 

provide the person the ability to prevent a particular recipient from receiving the 

information.' R.C. 2907.31(D)(2)(b)." We conclude that a person who posts 

matter harmful to juveniles on generally accessible websites and in public chat 

rooms does not violate R.C. 2907.31(D), because such a posting does not enable 

that person to "prevent a particular recipient from receiving the information.” 

{¶ 26} The certified questions and the parties focus on particular types of 

electronic communications, namely, e-mail, instant messaging, private chat 

rooms, public chat rooms, and generally accessible websites. Our answer is 

accordingly constrained by that focus and should not be construed as necessarily 

governing other types of electronic transmissions, whether currently in use or 

developed in the future. 

So answered. 

 MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,

LANZINGER, and CUPP, JJ., concur. 

__________________ 
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Sonnenschein, Nath & Rosenthal, L.L.P., Michael A. Bamberger, and 

Richard M. Zuckerman; Sirkin, Pinales & Schwartz, L.L.P., H. Louis Sirkin, and 

Jennifer M. Kinsley; and Carrie L. Davis, for respondents. 

Richard A. Cordray, Attorney General, Benjamin C. Mizer, Solicitor 

General, and Elise W. Porter, Assistant Solicitor; and Ron O’Brien, Franklin 

County Prosecuting Attorney, and Nick A. Soulas Jr., Assistant Prosecuting 

Attorney, for petitioners. 

______________________