U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Unlikely Pair Challenge Internet Harassment Law and Lose

There is certain to be some pushback to any new law that restricts activity on the World Wide Web. Sometimes, thanks to the web the internet has woven, unlikely allies can unite to fight a common cause. And when Ohio passed its recent internet harassment law, an unlikely duo from across the partisan aisles joined forces to challenge it.

Although the challenge seems to make logical sense, it appears to suffer from some procedural defects. According to the federal district court in Ohio, the challenge had to be dismissed on the 12(b)1 subject matter jurisdiction challenge for lack of standing. The decision, in large part, rests upon the fact that neither challenger has faced actual consequences, nor suffered an actual injury, as a result of the new law.

Standing to Challenge

The statute in question makes it a crime to post something online with the intent to abuse, threaten, or harass another person. A liberal website known as Plunderbund.com and the conservative Portage County Tea Party came together to challenge the law to the extent it prevented the publication of political speech that could be seen as abusive or harassing. Neither group challenged the law as to online threats.

The state's attorney general, in defending law, claimed that it would not be interpreted to reach political speech or government criticism, and that the challengers' alleged injuries are no more than mere speculation. The court explained that the challengers would need to show not only an intent to engage in the conduct that would violate the law, but they would also need to show a credible threat of being prosecuted for doing so. The court noted that the challengers failed to make allegations claiming an intent to engage in conduct that would violate the law.

The court went on to explain that the plaintiffs failed to show concrete or particularized harm, only speculative or conjectural or hypothetical harm. As such, the court could not find Article III standing, and thus dismissed on 12(b)1 grounds. Though an appeal may seem likely, this is a familiar standing issue in the circuit and the district court fell right in line with their circuit.

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