American Booksellers Foundation for Free Expression v. Strickland

The American Booksellers Foundation for Free Expression (ABFFE) (plaintiff), brought suit against Ohio Attorney General Ted Strickland (defendant). The ABFFE asserted that an Ohio statute, to the extent that it prohibited internet communication of obscene material to juveniles, was unconstitutional under the First Amendment for overbreadth and vagueness. The ABFFE filed a motion to preliminarily enjoin Strickland from enforcing the statute. The district court granted the ABFFE’s motion, finding that the statute violated the First Amendment for overbreadth, but rejected the ABFFE’s vagueness and Commerce Clause challenges. Strickland appealed the grant of the preliminary injunction. During the appeal, Ohio amended the statute, and the Sixth Circuit certified a pair of questions to the Ohio Supreme Court concerning whether the scope of the amended statute was limited to direct communications of obscene material, as opposed to material posted on generally accessible websites and chat rooms. The Ohio Supreme Court answered those questions in the affirmative. Responsive to supplemental briefing ordered by the Sixth Circuit, the parties agreed that in light of the Ohio Supreme Court’s statutory interpretation, the amended statute was constitutional under both the First Amendment and the Commerce Clause. The Sixth Circuit indicated that despite the parties’ agreement, the Sixth Circuit was obliged to conduct its own analysis of the constitutionality of the amended statute.