Text of OH HB 556 (2024)

As Introduced 135th General Assembly Regular Session H. B. No. 556 2023-2024 Representative Mathews A B I L L To amend sections 2907.32 and 2907.35 of the Revised Code to create criminal liability for certain teachers and librarians for the offense of pandering obscenity. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: Section 1. That sections 2907.32 and 2907.35 of the Revised Code be amended to read as follows: Sec. 2907.32. (A) As used in this section: (1) "Faculty member" means any person who is tasked with providing academic research or teaching at a private or public institution of higher education, as those institutions are defined in section 3365.01 of the Revised Code. (2) "Other person having a proper interest" does not include a teacher who is not a health or biology teacher or a school librarian. (3) "School librarian" means a librarian employed by a school district, other public school, as defined in section 3301.0711 of the Revised Code, or chartered nonpublic school and a librarian employed in a school district public library 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 H. B. No. 556 Page 2 As Introduced established in accordance with sections 3375.14 to 3375.18 of the Revised Code. (4) "Teacher" has the same meaning as in section 3319.09 of the Revised Code and includes an individual who has a teacher certification under section 3301.071 of the Revised Code. (B) No person, with knowledge of the character of the material or performance involved, shall do any of the following: (1) Create, reproduce, or publish any obscene material, when the offender knows that the material is to be used for commercial exploitation or will be publicly disseminated or displayed, or when the offender is reckless in that regard; (2) Promote or advertise for sale, delivery, or dissemination; sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide, any obscene material; (3) Create, direct, or produce an obscene performance, when the offender knows that it is to be used for commercial exploitation or will be publicly presented, or when the offender is reckless in that regard; (4) Advertise or promote an obscene performance for presentation, or present or participate in presenting an obscene performance, when the performance is presented publicly, or when admission is charged; (5) Buy, procure, possess, or control any obscene material with purpose to violate division (A)(2) (B)(2) or (4) of this section. (B) (C) It is an affirmative defense to a charge under 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 H. B. No. 556 Page 3 As Introduced this section, that the material or performance involved was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, health or biology teacher, faculty member, person pursuing bona fide studies or research, librarian other than a school librarian, clergyman member of the clergy , prosecutor, judge, or other person having a proper interest in the material or performance. (C) (D) Whoever violates this section is guilty of pandering obscenity, a felony of the fifth degree. If the offender previously has been convicted of a violation of this section or of section 2907.31 of the Revised Code, then pandering obscenity is a felony of the fourth degree. Sec. 2907.35. (A) An owner or manager, or agent or employee of an owner or manager, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances, who, in the course of business: (1) Possesses five or more identical or substantially similar obscene articles, having knowledge of their character, is presumed to possess them in violation of division (A)(5) (B) (5) of section 2907.32 of the Revised Code; (2) Does any of the acts prohibited by section 2907.31 or 2907.32 of the Revised Code, is presumed to have knowledge of the character of the material or performance involved, if the owner, manager, or agent or employee of the owner or manager has actual notice of the nature of such material or performance, whether or not the owner, manager, or agent or employee of the owner or manager has precise knowledge of its contents. 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 H. B. No. 556 Page 4 As Introduced (B) Without limitation on the manner in which such notice may be given, actual notice of the character of material or a performance may be given in writing by the chief legal officer of the jurisdiction in which the person to whom the notice is directed does business. Such notice, regardless of the manner in which it is given, shall identify the sender, identify the material or performance involved, state whether it is obscene or harmful to juveniles, and bear the date of such notice. (C) Sections 2907.31 and 2907.32 of the Revised Code do not apply to a motion picture operator or projectionist acting within the scope of employment as an employee of the owner or manager of a theater or other place for the showing of motion pictures to the general public, and having no managerial responsibility or financial interest in the operator's or projectionist's place of employment, other than wages. (D)(1) Sections 2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, and 2907.34 and division (A) of section 2907.33 of the Revised Code do not apply to a person solely because the person provided access or connection to or from an electronic method of remotely transferring information not under that person's control, including having provided capabilities that are incidental to providing access or connection to or from the electronic method of remotely transferring the information, and that do not include the creation of the content of the material that is the subject of the access or connection. (2) Division (D)(1) of this section does not apply to a person who conspires with an entity actively involved in the creation or knowing distribution of material in violation of section 2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33, or 2907.34 of the Revised Code or who 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 H. B. No. 556 Page 5 As Introduced knowingly advertises the availability of material of that nature. (3) Division (D)(1) of this section does not apply to a person who provides access or connection to an electronic method of remotely transferring information that is engaged in the violation of section 2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33, or 2907.34 of the Revised Code and that contains content that person has selected and introduced into the electronic method of remotely transferring information or content over which that person exercises editorial control. (E) An employer is not guilty of a violation of section 2907.31, 2907.311, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33, or 2907.34 of the Revised Code based on the actions of an employee or agent of the employer unless the employee's or agent's conduct is within the scope of employee's or agent's employment or agency, and the employer does either of the following: (1) With knowledge of the employee's or agent's conduct, the employer authorizes or ratifies the conduct. (2) The employer recklessly disregards the employee's or agent's conduct. (F) It is an affirmative defense to a charge under section 2907.31 or 2907.311 of the Revised Code as the section applies to an image transmitted through the internet or another electronic method of remotely transmitting information that the person charged with violating the section has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by juveniles to material that is harmful to juveniles, including any method that 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 H. B. No. 556 Page 6 As Introduced is feasible under available technology. (G) If any provision of this section, or the application of any provision of this section to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of this section or related sections that can be given effect without the invalid provision or application. To this end, the provisions are severable. Section 2. That existing sections 2907.32 and 2907.35 of the Revised Code are hereby repealed. 136 137 138 139 140 141 142 143 144