                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0108p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                  X
                                                   -
 AMERICAN BOOKSELLERS FOUNDATION FOR

       Plaintiffs-Appellees/Cross-Appellants, --
 FREE EXPRESSION, et al.,

                                                   -
                                                       Nos. 07-4375/4376

                                                   ,
                                                    >
                                                   -
           v.

                                                   -
                                   Defendant, -
 TED STRICKLAND,
                                                   -
                                                   -
                                                   -
      Defendants-Appellants/Cross-Appellees. -
 RICHARD CORDRAY*, et al.,
                                                   -
                                                  N
                    Appeal from the United States District Court
                    for the Southern District of Ohio at Dayton.
                   No. 02-00210—Walter H. Rice, District Judge.
                                  Argued: December 12, 2008
                              Decided and Filed: March 19, 2009
                                                                *                                  **
 Before: MARTIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.

                                      _________________

                                            COUNSEL

ARGUED: Benjamin C. Mizer, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Michael A. Bamberger, SONNENSCHEIN NATH &
ROSENTHAL, New York, New York, for Appellees. ON BRIEF: William P.
Marshall, Michael D. Meuti, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Michael A. Bamberger, SONNENSCHEIN NATH &
ROSENTHAL, New York, New York, Jennifer M. Kinsley, H. Louis Sirkin, SIRKIN,
PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellees.




        *
        Richard Cordray, Attorney General of the State of Ohio, has been automatically substituted for
Nancy H. Rogers, Interim Attorney General pursuant to Fed. R. App. P. 43(c)(2).
        **
            The Honorable James G. Carr, Chief United States District Judge of the Northern District of
Ohio, sitting by designation.


                                                  1
Nos. 07-4375/4376            American Booksellers Foundation,                        Page 2
                             et al. v. Strickland, et al.


                    _______________________________________

                      ORDER OF CERTIFICATION TO THE
                          SUPREME COURT OF OHIO
                    _______________________________________

       BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs sued Ohio’s Attorney
General and county prosecutors, arguing that Ohio Revised Code § 2907.31(D)(1) is
unconstitutional under the First Amendment and Commerce Clause. The district court
permanently enjoined its enforcement “as applied to internet communications,” on the
basis that it is overbroad and violates the First Amendment. Am. Booksellers Found. for
Free Expression v. Strickland, 512 F. Supp. 2d 1082, 1106 (S.D. Ohio 2007).
Defendants appealed; and Plaintiffs cross-appealed the district court’s decision that the
law is not void for vagueness, nor does it violate the Commerce Clause.

       Although neither side addressed the issue of certification in their briefs or at oral
argument, for the reasons below we sua sponte CERTIFY the questions set forth in II.B.
of this order to the Supreme Court of Ohio under to Rule XVIII of the Rules of Practice
of the Supreme Court of Ohio.

                                            I.

       Plaintiffs, who include publishers, retailers, and web site operators, originally
filed a lawsuit in 2002 seeking to enjoin Defendants from enforcing O.R.C. § 2907.01(E)
& (J) (2002), which, at that time, prohibited the dissemination or display of “materials
harmful to juveniles.” The district court granted a preliminary injunction because the
statute’s definition of “harmful to juveniles” did not comport with the Supreme Court’s
test in Miller v. California, 413 U.S. 15 (1973), as modified for juveniles in Ginsberg
v. New York, 390 U.S. 629 (1968). Bookfriends, Inc. v. Taft, 223 F. Supp. 2d 932, 945
(S.D. Ohio 2002). To determine whether something is obscene, the Miller test asks:

       (a) whether the average person, applying contemporary community
       standards would find that the work, taken as a whole, appeals to the
       prurient interest; (b) whether the work depicts or describes, in a patently
       offensive way, sexual conduct specifically defined by the applicable state
Nos. 07-4375/4376            American Booksellers Foundation,                          Page 3
                             et al. v. Strickland, et al.


        law; and (c) whether the work, taken as a whole, lacks serious literary,
        artistic, political, or scientific value.
Reno v. Am. Civil Liberties Union, 521 U.S. 844, 872 (1997) (quoting Miller, 413 U.S.
at 24). Defendants appealed, but before this Court heard the case, the Ohio General
Assembly amended the statute in 2003. As a result, this Court remanded the case to the
district court.

  As amended, Section 2907.31(A) now provides:

        (A) No person, with knowledge of its character or content, shall
        recklessly do any of the following:
        (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;
        (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;
        (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.
  Section 2907.01(E) defines “harmful to juveniles”:

        (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:
        (1) The material or performance, when considered as a whole, appeals to
        the prurient interest of juveniles in sex.
        (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.
Nos. 07-4375/4376            American Booksellers Foundation,                            Page 4
                             et al. v. Strickland, et al.


       (3) The material or performance, when considered as a whole, lacks
       serious literary, artistic, political, and scientific value for juveniles.
 The two “internet provisions,” § 2907.31(D)(1) and (2), provide:

       (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.
       (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:
       (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.
       Back in the district court, Plaintiffs amended their complaint to challenge the
statute as revised, and in 2003 the parties filed cross-motions for summary judgment.
The district court granted both parties’ motions in part and denied them in part in 2004,
but it did not file its decision until September 2007. It permanently enjoined the
enforcement of O.R.C. § 2907.31(D) as applied to internet communications. Am.
Booksellers, 512 F. Supp. 2d at 1106. The court determined that the law violated the
First Amendment because the internet provisions were unconstitutionally overbroad and
because the statute failed strict scrutiny. The district court also concluded that the
definition of “harmful to juveniles” in the new statute conformed to the Miller-Ginsburg
standard, and thus rejected Plaintiffs’ void-for-vagueness challenge. Finally, the court
Nos. 07-4375/4376            American Booksellers Foundation,                       Page 5
                             et al. v. Strickland, et al.


also rejected a challenge under the Commerce Clause. Defendants appealed and
Plaintiffs cross-appealed.

                                            II.

                               A. Merits of Certification

       The Rules of Practice of the Supreme Court of Ohio provide it with discretion
to answer questions of Ohio law certified to it by a federal court. R. of Prac. Sup. Ct.
Ohio XVIII. Before certifying a question, however, we must determine that “there is a
question of Ohio law that may be determinative of the proceeding and for which there
is no controlling precedent[.]” R. of Prac. Sup. Ct. Ohio XVIII, § 1. As the Supreme
Court of Ohio has explained, “[c]ertification ensures that federal courts will properly
apply state law.” Scott v. Bank One Trust Co., N.A., 577 N.E.2d 1077, 1081 (Ohio 1991)
(per curiam). The United States Supreme Court also recognizes that “certification of
novel or unsettled questions of state law for authoritative answers by a State’s highest
court . . . may save time, energy, and resources and help build a cooperative judicial
federalism.” Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997) (internal
quotations and alterations omitted).

       Federal courts certify questions if an “unconstrued state statute is susceptible of
a construction by the state judiciary which might avoid in whole or in part the necessity
for federal constitutional adjudication, or at least materially chance the nature of the
problem.” Bellotti v. Baird, 428 U.S. 132, 147 (1976) (internal quotations omitted).
Absent an authoritative interpretation by the state court, “it is impossible to define
precisely the constitutional question presented.” Id. at 148.

       Here, the parties fundamentally disagree on the scope of the challenged statute
and on the meaning of several of its terms. Resolution of that debate may well determine
whether any of the Plaintiffs has standing. Defendants argue that none of Plaintiffs’
internet activity falls with the statute’s sweep because the statute “does not regulate Web
communications, other than such personally directed devices as instant messaging
Nos. 07-4375/4376            American Booksellers Foundation,                     Page 6
                             et al. v. Strickland, et al.


[commonly referred to as ‘IM,’] or person-to-person e-mail.” But because “the Attorney
General does not bind the state courts or local law enforcement authorities, we are
unable to accept [his] interpretation of the law as authoritative.” Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 395 (1988); see Northland Family Planning Clinic, Inc.
v. Cox, 487 F.3d 323, 338 (6th Cir. 2007). Moreover, the Attorney General has not
issued a formal opinion on the scope of § 2907.31(D). Rather, we know his views
through the position he has taken in the course of this litigation.

       Plaintiffs, on the other hand, contend that § 2907.31(D) exempts a narrower
range of internet communication than Defendants admit and regulates webpage
communication in certain circumstances. Notably, as Plaintiffs point out, the statute
provides no guidance about when a person has “inadequate information” to “have reason
to believe that a particular recipient of the information . . . is a juvenile,”
§ 2907.31(D)(2)(a), or has the “ability to prevent a particular recipient from receiving
the [harmful to juveniles] information,” § 2907.31(D)(2)(b).

       Thus, rather than speculate, the better course, in our view, is to provide the
Supreme Court of Ohio with the opportunity to interpret the scope of § 2907.31(D)(2)’s
exemptions and the statute’s coverage. Given our lack of authoritative state-court
construction and because the statute appears susceptible to the narrowing construction
the Attorney General puts forth, we certify, sua sponte, the questions that follow to the
Supreme Court of Ohio. See, e.g. Planned Parenthood Cincinnati Region v. Strickland,
531 F.3d 406 (6th Cir. 2008) (certifying sua sponte questions of state law to Supreme
Court of Ohio).

                          B. Certified Questions of State Law

       We certify the following questions of state law to the Supreme Court of Ohio
pursuant to Rule XVIII of the Rules of Practice of the Supreme Court of Ohio:

       (1) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to limit
       the scope of § 2907.31(A), as applied to electronic communications, to
Nos. 07-4375/4376                American Booksellers Foundation,                               Page 7
                                 et al. v. Strickland, et al.


         personally directed devices such as instant messaging, person-to-person e-mails,
         and private chat rooms?
         (2) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to exempt
         from liability material posted on generally accessible websites and in public chat
         rooms?
                        C. The Information Required by Rule XVIII

         We provide the following information in accordance with Rule XVIII, § 2(A)-
(E):

         1. Name of the case: American Booksellers Foundation for Free Expression, et
         al. v. Strickland, et al.
         2. Statement of facts: Please refer to § I of this order for a full recitation of the
         pertinent facts.
         3. Name of each of the parties:
         a. Plaintiffs-Appellees/Cross-Appellants: American Booksellers Foundation for
         Free Expression; Association of American Publishers, Inc.; Freedom to Read
         Foundation; National Association of Recording Merchandisers; Sexual Health
         Network; Video Software Dealers Association; Ohio Newspaper Association;
         Web Del Sol;1 and Marty Klein.
         b. Defendants-Appellants/Cross-Appellees: Ted Strickland, Ohio Governor;
         Richard A. Cordray, Ohio Attorney General; Ron O’Brien, Prosecuting Attorney
         for Franklin County, Ohio, as a representative of a class of all Prosecuting
         Attorneys in Ohio.
         4. Names, Addresses, and Telephone Numbers of Counsel for Each Party:
         a. Plaintiffs-Appellees’/Cross-Appellants’ Counsel:
         Mr. Michael A. Bamberger
         Sonnenschein Nath & Rosenthal LLP
         1221 Avenue of the Americas
         New York, NY 10020-1089
         (212) 768-6756




         1
          We include Plaintiffs Web Del Sol and Marty Klein and Defendant Ted Strickland in this list
because none of them has been formally terminated from the case. We note, however, that they were not
included as parties in Plaintiffs’ second amended complaint and we express no opinion here as to whether
they remain parties to the suit.
Nos. 07-4375/4376            American Booksellers Foundation,                      Page 8
                             et al. v. Strickland, et al.


       Ms. Jennifer M. Kinsley
       Mr. Henry Louis Sirkin
       Sirkin Pinales & Schwartz LLP
       105 W. Fourth Street
       Suite 920
       Cincinnati, OH 45202-2726
       (513) 721-4876

       b. Defendants-Appellants’/Cross-Appellees’ Counsel:

       Mr. Benjamin C. Mizer
       Solicitor General
       Office of the Ohio Attorney General
       30 E. Broad Street
       17th Floor State Office Tower
       Columbus, OH 43215-3428
       (614) 466-8980

       Mr. Nick A. Soulas, Jr.
       Prosecuting Attorney’s Office for the County of Franklin
       373 S. High Street; 13th Floor
       Franklin County Courthouse
       Columbus, OH 43215-6318
       (614) 462-3520

       5. Designation of Moving Party: Although neither side sought certification, we
       designate Ohio Attorney General, Richard Cordray, and Franklin, County, Ohio
       Prosecuting Attorney, Ron O’Brien, as a representative for a class of all Ohio
       prosecuting attorneys—who have collectively been referred to throughout this
       order as “Defendants”—as moving parties.
                              D. Instructions to the Clerk

       In accordance with Rule XVIII, § 3 of the Rules of Practice of the Supreme Court
of Ohio, Mr. Leonard Green, Clerk of the United States Court of Appeals for the Sixth
Circuit, is hereby instructed to serve copies of this certification order upon counsel for
the parties and to file this certification order under the seal of this court with the
Supreme Court of Ohio, along with appropriate proof of service.
Nos. 07-4375/4376            American Booksellers Foundation,                       Page 9
                             et al. v. Strickland, et al.


                                           III.

        For the above reasons, we CERTIFY questions of state law to the Supreme Court
of Ohio. It is further ordered that the district court’s preliminary injunction against the
enforcement of O.R.C. § 2907.31 remain in full force and effect pending further order
of this court.




___________________________________________
Boyce F. Martin, Jr.
United States Court of Appeals for the Sixth Circuit
