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Injunction Granted Against Revised Mass. Obscenity Law

Revision extended ‘matter harmful to minors’ to electronic means of dissemination

Injunction Granted Against Revised Mass. Obscenity Law

CYBERSPACE—A federal judge handed free speech advocates a victory yesterday when she granted a motion for a preliminary injunction in a case involving a recently amended section of a Massachusetts statute supposed to protect minors from sexual predators. 

The statute, which has been on the books since 1982, prohibits the dissemination of sexually explicit matter to minors. In February of this year, however, the Massachusetts Supreme Judicial Court ruled that the statute’s then-existing definitions of “matter” and “visual material” did not include “electronically transmitted text, or ‘online conversations.’ In July, the state legislature amended the statute.

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The amendment changed the definition of “matter” to read:

“…any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, figures, statutes, plays, dances, or any electronic communications including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the internet or wireless network, whether by computer, telephone, or any other device or by a transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.” [Italics added]

The same month the legislature amended the statute, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Comic Book Legal Defense Fund and others filed a federal lawsuit challenging the new section, essentially arguing that individuals and institutions that disseminated “sexually frank”  material on websites cannot, as a practical matter, discern the ages of those who choose to access the information. By passing the amendment, they argued, the state had impermissibly inhibited free speech as to adults.

In coming to her decision, Zobel applied first principles to the statute, in particular the long-held requirement that, for the purposes of harmful-to-minors laws, the sender of such material must know that the matter is purposefully being disseminated to a person he knows to be a minor. Plaintiffs had argued that the amended statute is over-broad because it contains no requirement that the sender must know that the content was purposefully being disseminated to someone s/he knew to be a minor.

The Commonwealth argued that the knowledge requirement should be read into the statute, relying on a state Supreme Court case, Com. V Belcher. Zobel found, however, that in Belcher the Supreme Court does not “address whether the Commonwealth is required to prove that the defendant disseminated the material to a person known to him to be a minor,” and thus “cannot bear the weight the Commonwealth seeks to place on it.”

The Commonwealth also tried to argue that, under the doctrine of constitutional avoidance, courts have construed various statutes in such a manner as to render them constitutional, but Zobel found that, in this case, “a federal court is called upon to construe a state statute in the absence of a explicit state court adjudication. In such circumstances, revision of s state statute by a federal court would be inappropriate.”

Zobel then reasoned, citing Virgina v Hicks, “A law that is overly broad ‘proscribe(s) a substantial amount of constitutionally protected speech judged in relation to the statute’s plainly legitimate sweep.’ Such a law warrants the drastic remedy of invalidation to ‘allay the concern that the threat of enforcement of [such a] law may deter or chill constitutional speech.’ To prevail in a facial-overbreadth challenge, plaintiffs must ‘demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally.’” The latter reference is to N.Y State Club Ass’n v City of New York.

Finding that the plaintiffs had indeed met that hurdle, Zobel concluded, “Plaintiffs have demonstrated, without question, that the 2010 amendments to §§ 28 and 31 violates the First Amendment.”

The decision can be read here.






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Tom Hymes

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