ACLU, Internet content providers oppose MA obscenity law on constitutional grounds

Groups opposed to an amending a Massachusetts obscenity law targeting electronic communications argued their case in front of US district judge Rya Zobel this past Tuesday. The internet content providers and free speech advocates filed a request for a preliminary injunction banning the state of Massachusetts from enforcing an amendment passed earlier this year that would make it illegal to send “matter harmful to minors” through electronic communications.

The old law made it illegal to disseminate content considered offensive to minors, including information on pregnancy, contraception, and “obscene” art or literature, but didn’t prohibit it from the internet. The new law, however, would prevent “obscene” content from being published in:

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 any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

The groups brought up several other objections to the law. John Reinstein, legal director of the ACLU, said that “there are no reasonable technological means that allow Internet users to ascertain the age of anyone who might access their online communications and then restrict access for minors."

The ACLU argues further that "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." Under the new law, content published on the internet must be in a form suitable for minors, therefore restricting access for adults and violating first amendment rights. The ACLU is also concerned about how this law will affect the internet in other states, claiming that a law that would affect other states violates the Interstate Commerce Clause of the constitution.

The new law is a result of a case earlier this year in which a man was charged with sending sexually explicit instant messages to someone he believed was 13 years old. Judge ruled that the law, as it stood in February, did not include electronic communications, and the conviction was overturned. State legislature moved quickly to amend the law, which prosecutors argue is too broad in scope and infringes upon First Amendment rights.

18 judges in seven other states have rejected similar laws based on constitutionality, and an eighth state (Ohio) upheld the law if its language was narrowed to include only person-to-person communication. The ACLU says "we should have adequate safeguards to protect children, but those safeguards cannot unreasonably interfere with the rights of adults to access materials protected by the First Amendment."

The defendants argue that "contrary to plaintiffs' assertions, the statute does not regulate any protected adult-to-adult speech, nor does it criminalize the publication of harmful matter on the Internet for all to see, even with the knowledge that a minor may gain access to it,” but the prosecution disagrees. They argue that the broad language, which restricts "the dissemination on the Internet of any material which is 'harmful to minors’” should be struck and replaced with language specifically restricting dissemination to someone known to be a minor.

Judge Zobel has not yet made a ruling.