Federal court bars enforcement of Massachusetts law prohibiting distribution of sexual material to minors

A federal district court has blocked the enforcement of a Massachusetts obscenity law that makes it a crime to disseminate electronic material harmful to minors. -db

The Reporters Committee for Freedom of the Press
October 28, 2010
By Rosemary Lane

A federal district court in Massachusetts Tuesday granted a preliminary injunction preventing the enforcement of a Massachusetts statute that criminalizes the dissemination of electronic material that is “harmful to minors.”

The plaintiffs, including booksellers, publishers, an online photographic non-profit and a licensed marriage and family therapist, argued that the statute is overbroad, because it penalizes adults who may distribute sexually explicit information electronically to minors without knowing their age. District Judge Rya Zobel agreed the plaintiffs demonstrated, “without question, that the 2010 amendments … violate the First Amendment.”

The amendments were added to an existing state law after the Massachusetts Supreme Judicial Court overturned a conviction in February of a man who sent sexually explicit text messages to an undercover police officer posing as a 13-year-old girl. The state high court ruled at the time that the existing Massachusetts law, which was enacted in 1982, criminalized distributing visual, written or printed material that is harmful to minors, but did not extend to electronic texts or online conversations because it was silent as to those forms of communication.

Lawmakers quickly added an amendment to the statute on March 4 to include electronic mail, instant messages, text messages and any other form of electronic communication that is sexually explicit. The statute went into effect in July.

The group of plaintiffs filed suit shortly thereafter. They argued adults publishing sexually explicit information online, even about topics like health or pregnancy, cannot possibly know who is accessing their sites. Agreeing with the plaintiffs, the court ruled that “the statute impermissibly inhibits free speech as to adults.”

John Reinstein, the legal director for the American Civil Liberties Union of Massachusetts, one of the plaintiffs, said the plaintiffs would have potentially had to self-censor what they published on their blogs and websites so that it wouldn’t be inappropriate for children.

“You can’t have a standard for broad-based communication which limits what can be said to the level of what’s appropriate for kids,” Reinstein said.

Attorney General Martha Coakley, who contributed to drafting the amendment, could not be reached for comment Thursday.

In a statement to The Boston Globe, Coakley said her office “will examine whether a legislative change is necessary to ensure that law enforcement has the necessary tools to protect children online,’’ Coakley said.

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