By Kevin Aldridge
The Cincinnati Enquirer

The 1st District Court of Appeals heard arguments Tuesday in a case that questions the constitutionality of Ohio's importuning law.

The law makes it a crime for anyone over age 18 to use a computer or phone to solicit sex from a child. In 2001 the Legislature amended the law to make the crime a felony and, specifically, to allow police to go undercover online.

The three-judge panel held the court proceeding at Xavier University before more than 60 students. The case before the Appeals Court involves Thomas Tarbay, a Pickerington man who was convicted in July on one count of attempted unlawful sexual conduct with a minor and five counts of importuning.

Tarbay, 49, was accused of soliciting sex from what he thought to be 13- and 15-year-old girls during conversations in an Internet chat room. An officer was posing as the girls.

Tarbay, who also allegedly exposed himself via a Web cam, was sentenced to 180 days in prison and was declared a sex offender.

Tarbay's appeals attorney, Louis Sirkin, argued Tuesday that his client's First Amendment rights had been violated during the sting. Sirkin said Tarbay had not actually committed a crime because a real minor was not involved.

"If there were a minor involved, I wouldn't be here," Sirkin told the panel. "There was not a real minor involved, but a police officer playing a role," he said. "... If it is not a real minor, there is no crime."

Sirkin said conversation between two adults about sex, so long as money is not involved, is legal and protected speech. Tarbay engaged in sexual conversations with an adult police officer who pretended to be underage.

"You cannot suppress lawful speech to suppress unlawful speech," Sirkin said.

Ron Springman, an assistant prosecuting attorney in Hamilton County and a professor at Xavier University, argued that the statute was constitutional and that law enforcement officials need to have some way of regulating people who would engage in this type of illegal activity.

Defense attorneys arguing against the importuning law have been dealt blows by Ohio appellate courts in Dayton and Lima. This is the first appellate court to hear such a case in Hamilton County.

It could be several weeks before the appeals court returns with a decision.

E-mail kaldridge@enquirer.com