The Internet, Libraries & Matter Harmful to Juveniles: A Brief Legal Perspective
Prepared for the Ohio Library Community Stripped of the misinformation and unsupported statements of library critics, library-sponsored Internet access, coupled with clear and conspicuously available library policies on parental responsibilities for determining the appropriateness of Internet material for their children, would not appear to violate Ohio's "Disseminating Matter Harmful to Juveniles" statute. Librarians should understand, however, that the Ohio statute may be implicated where the librarian is actively involved in the selection of an Internet site for viewing by a juvenile, and most specifically where they participate in the actual location of that site.
by The Ohio Library Council
Although presently very much in a state of limbo, the Communications Decency Act intriguingly seems to offer a safe harbor to libraries through the defense available in 47 U.S.C. §223(e)(1), even if library-sponsored Internet access does somehow violate subsections (a)(1)(B), (a)(2) or (d) of the CDA. Of even more interest, 47 U.S.C. §223(f)(2) might even provide libraries with a defense to prosecution under the Ohio "Disseminating Matter Harmful to Juveniles" statute, at least as it relates to the Internet.
There are at present no decided cases which interpret the applicable State and Federal statutes in the context of library Internet access. However, the text of the applicable statutes themselves and analogous cases decided under those statutes strongly suggest that Internet access sponsored by Ohio's public libraries, in the form in which most Ohio public libraries provide it, does not violate either Ohio's "Disseminating Matter Harmful to Juveniles" statute (Ohio Revised Code Section 2907.31) or the Federal Communications Decency Act, found at Title 47, United States Code, Section 223.
For the purposes of this analysis, a violation of Ohio Revised Code Section 2907.31 is committed when a person
(2) With knowledge of its character or content
(3) (a) sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents to a juvenile any material that is obscene or harmful to juveniles, or offers or agrees to do any of the foregoing; or
(b) allows a juvenile to review or peruse any material that is harmful to juveniles.
For criminal liability to arise, a prosecutor must establish the existence, beyond a reasonable doubt, of each and every one of the elements numbered 1, 2 and 3 above.
First, a person acts recklessly when, "with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." Ohio Revised Code Section 2901.22(C). Well publicized and actively distributed library policies which clearly and unmistakably enunciate library policy that it is the parents' responsibility to supervise the content of the material their children review via the Internet would seem to offer some defense to a claim that a library was reckless in providing Internet access to children.
Second, a librarian needs to have knowledge of the character or content of the material in question. Given the vast information available over the Internet, absent active participation with the juvenile, it is difficult to perceive how a librarian could charged without evidence that the librarian was aware of specific content in a specific instance.
Third, the librarian needs to have sold, delivered, furnished, disseminated, provided, exhibited, rented or presented material to the juvenile, or allowed the juvenile to review or peruse material, known by the librarian to be obscene or harmful to juveniles.
Although none of the decided cases are directly on point, there are three cases which are useful in interpreting the statute. One case, State v. Loshin, 19 Ohio Op. 3d 141 (Ham. Cty. App. 1980), held that an interior store display of obscene materials which could be seen through the store window by juveniles was not "presenting to a juvenile" within the meaning of the statute. The second case, State v. Zeh, 7 Ohio App. 3d 235 (1982), followed Loshin in holding that in the context of an obscene radio program the statute required a "direct presentation to a specific juvenile or group of juveniles as opposed to a presentation to the general public." A third case, State v. Watkins, No. 94-CA-1006, 1995 Ohio App. Lexis 2756 (June 30, 1995), which involved an obscene photograph in a book, differentiated between intentionally directing a juvenile's attention to the photo (which supported a criminal conviction) and simply leaving the book containing the photo in a place where a juvenile might see it (which, under the facts of that case, supported non-criminal negligent behavior and not criminal reckless behavior).
These cases would appear to require that a librarian be actively involved in the access by a specific minor to material which the librarian knows to be obscene for criminal liability to arise. Moreover, the act required under the statute (e.g., sell, deliver, furnish, etc.) similarly requires some affirmative act by the librarian. It would appear very unlikely that merely providing a terminal in the library with Internet access and knowing that juveniles will use it could be construed as reckless or be otherwise sufficient to give rise to criminal liability.
Finally, librarians do have available to them an affirmative defense under the statute:
It is an affirmative defense to a charge under this section, involving material ...that is obscene or harmful to juveniles, that the material ... was furnished or presented for bona fide medical, scientific, educational, governmental, judicial, or other proper purpose by a physician, psychologist, sociologist, scientist, teacher, librarian, clergyman, prosecutor, judge or other proper person. Ohio Revised Code Section 2907.31(C)(1). (emphasis added)
Obviously, the availability of this defense would hinge on the librarian being able to establish that conduct otherwise proscribed by the statute was for an "educational" or other proper purpose.
Some of the critics of library-sponsored Internet access have also claimed that by offering access to minors libraries also risk violating the Federal Communications Decency Act ("CDA"). First, as two court decisions have held, that Act has presently been declared unconstitutional, at least as it applies to the dissemination of obscene or patently offensive material to juveniles over the Internet. American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996); Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996). Second, and more intriguingly for libraries, even if the CDA was constitutional, it does not appear to prohibit the type of Internet access provided by public libraries in Ohio and may even pre-empt enforcement of Ohio's "Disseminating Matter Harmful to Juveniles" statute as it applies to the Internet.
Library-sponsored access to the Internet would appear to implicate two provisions of the CDA. The first, 47 U.S.C. §223(a)(1)(B), criminalizes conduct which "knowingly ...makes, creates or solicits, and ...initiates the transmission of ..." an obscene or indecent communication to a juvenile. On the face of the statute, a library's mere providing of access to the Internet would not appear to have anything to do with "making, creating, or soliciting" or "initiating the transmission of" any obscene or indecent communication.
A related provision, 47 U.S.C. §223(a)(2), prohibits anyone from permitting a "telecommunications facility under such person's control" from being used for an activity prohibited under (a)(1)(B) "with the intent that it be used for such activity." Proving that a library initiated Internet access with the "intent" that it be used for making, creating, soliciting or transmitting obscenity would appear to be a very difficult proposition.
The second applicable CDA provision, 47 U.S.C. §223(d)(1), criminalizes the "knowing" use or "knowing permission" of use" of an interactive computer system to send to or display to a specific person under the age of 18 certain patently offensive communications. Under this provision, a library would almost certainly not be "sending" patently offensive communications to specific minors. There may be some argument that a library could somehow be "displaying" the offensive communication, but it seems more likely that the statute requires active participation rather than the passive availability of a tool that can be used for this purpose.
In any event, a defense provided under the CDA would seem to offer Ohio public libraries with protection from prosecution under the above-mentioned Sections even if §223(d)(1) was interpreted to extend to library-sponsored Internet access:
No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a ...system, or network not under that person's control, including transmission, downloading, ....access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication." 47 U.S.C. §223(e)(1).
The Internet is most certainly not under a library's control, and since a library will be serving as a mere provider in almost all instances, this defense should be applicable to an Ohio public library.
Finally, and most interestingly, subsection (f)(2) of the CDA, in somewhat confusing and ambiguous language, provides that
No State or local government may impose any liability for commercial activities or actions by commercial entities, nonprofit libraries, or institutions of higher education in connection with an activity or action described in subsection (a)(2) or (d) that is inconsistent with the treatment of those activities or actions under this section...... 47 U.S.C. §223(f)(2). (emphasis added)
Although this conclusion is more than a little speculative, subsection (f)(2) at least offers the possibility that, since subsection (e)(1) of the CDA arguably offers libraries a defense where they simply are a conduit for material, to the extent that the Ohio statute does not offer this defense it is pre-empted by the Federal law.
As always, libraries should understand that this is not legal advice. Ohio's public libraries should seek the counsel of their statutory legal representative, their county prosecutor, and should follow their county prosecutor's advice.
The OLC's legal counsel, Jonathan Iten, of Vorys, Sater, Seymour and Pease (614-464-5653), is available to discuss this memorandum with and to provide supplemental information to your county prosecutor.
The OLC gratefully acknowledges Lucas County Prosecuting Attorney's Opinion #96-35, Liability for Internet Communication of Harmful/Obscene Information, dated September 13, 1996, which was an invaluable resource in preparing this memorandum. All statements in this memorandum, however, are solely those of the OLC.