YNOT – A coalition of booksellers, internet content providers and free-speech advocates has sued the State of Massachusetts hoping to enjoin enforcement of a recent revision to the state’s obscenity law.In a federal lawsuit filed Tuesday, the state chapter of the American Civil Liberties Union, the Association of American Publishers, the Comic Book Legal Defense Fund, the American Booksellers Foundation for Free Expression, Harvard Book Store, sex therapist Marty Klein and others allege the statute’s new wording unconstitutionally hampers free expression by criminalizing any internet communication that might be “harmful to minors” under Massachusetts’ definition of the concept.
The updated statute outlaws distribution of “matter harmful to minors” by any means, not just via “handwritten or printed material, visual representation, live performance or sound recording.” The revision specifically incorporates “any electronic communication 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.” The legislature moved to change the previous law after the state’s Supreme Judicial Court on Feb. 5 overturned the conviction of a man who sent sexually explicit instant messages to an undercover law enforcement officer he thought was a 13-year-old girl.
“If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition, it is for the Legislature, not the court, to do so,” the court noted in its opinion.
The legislature did wish to do so, but lawmakers went too far according to free-speech advocates. As the law stands now, it effectively allows censorship of materials that are legal for adults to view and transmit, including not only legal pornography but also discussions about contraception and pregnancy, sexual health, literature and art.
“[The law’s] inevitable effect, if permitted to stand, is that internet content providers will limit the range of their speech,” ACLU of Massachusetts Legal Director John Reinstein said in a statement.
ACLU spokesman Christopher Ott told The Boston Globe, “One of the many concerns is that this is in the eye of the beholder, and anyone who finds something objectionable can use this law to try to get [content] taken down” from the web.
“Due to the very nature of the internet, virtually every communication on the internet may potentially be received by a minor and therefore may potentially be the basis for prosecution,” the complaint notes. “Because internet speakers have no means to restrict minors in Massachusetts from accessing their communications, the act effectively requires almost all discourse on the Internet — whether among citizens of Massachusetts or among users anywhere in the world — to be at a level suitable for young children. The act therefore bans an entire category of constitutionally protected speech between and among adults on the internet.”
Because the act seeks to give Massachusetts control over all discourse on the web, the complaint alleges it violates not only First Amendment guarantees, but also the Constitution’s Interstate Commerce Clause.
The law went into effect Monday. Penalties for violating the legislation include up to five years in prison and/or a $10,000 fine.
