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A few weeks ago, I reported in our InfoLaw Newsletter about a case in the United States Court of Appeals for the Sixth Circuit. The suit challenged the constitutionality of Ohio online Harassment statute. Three plaintiffs, all of whom are active on social media, brought the case.

The plaintiffs contended that the Ohio Revised Code 2917.21(B)(2), which states:

No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another person.

It is so broadly worded that it could criminalize political commentary. And since the three plaintiffs often commented on politics, they were in the statute’s crosshairs. They sought to proactively enjoin any enforcement of the law.

The District Court dismissed the action, finding that the plaintiffs lacked standing to proceed with the lawsuit. They failed to present evidence of an “injury in fact” which would allow them to proceed. The plaintiffs appealed that ruling to the Sixth Circuit.

As it turns out, the Sixth Circuit agreed with the District Court and affirmed. The Sixth Circuit found that the plaintiffs failed to demonstrate a “credible threat of enforcement.” Their fears weren’t enough.

The plaintiffs could ask the United States Supreme Court to review the case, but that court has discretion about which cases to hear. The Bengals have a better shot at the Super Bowl than the Supreme Court taking on this case. Which means, in all likelihood, this is the final word.

And what that really means is that we’ll have to wait for a court to decide what exactly constitutes “harassment,” especially in the rough and tumble world of social media. It may take someone actually getting charged. The proactive approach doesn’t seem to work.