In State v. Tooley, 11th Dist. No. 2004-P-0064, 2005 Ohio 6709, the Eleventh District found that R.C. 2907.323 chilled a significant amount of protected speech and thus was unconstitutionally overbroad. Id. at P68-70. The Tooley Court asserted that due to the overwhelming similarities between actual and virtual child pornography that R.C. 2907.323's mens rea element, recklessly, meant that individuals would be less likely to view virtual child pornography because of the inherent risk of being incorrect and later learning that they were viewing actual pornography. "If the individual believed the image was virtual and 'took a chance' by viewing the image, and the image, in fact, was real child pornography (if that determination could be made) the individual could be argued to have violated R.C. 2907.323(A)(3), because he acted recklessly, i.e., he disregarded a known risk that his conduct was likely to cause him to view child pornography." Id. at P69.