It has long been illegal in Massachusetts to provide minors with "matter harmful to minors" under the state's "Crimes against chastity, morality, decency, and good order" law. The law targets obscenity, but only its physical forms, which makes it easier to enforce. When little Johnny steps inside the adult video store, clerks can check his ID before selling him that DVD of industrial sexuality. And anyone trying show hardcore porn to a 13-year old knows exactly what they're doing, and who they're doing it to.
In April, this "harmful to minors" law received a brief update—not more than a couple of paragraphs—but they had profound implications for free expression. The new law extended "harmful to minors" to the Internet. In addition to smutty books, films, pamphlets, pictures, plays, dances, and statues (!), Massachusetts decided that the "matter" which might harm minors should now include:
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 law went into effect yesterday, and today it was challenged in court by the ACLU, the Comic Book Legal Defense Fund, and several booksellers. By going digital, the expanded law suddenly moves away from the shop counter and onto the 'Net, where it "threatens Internet communications nationwide and even worldwide."
The ACLU argues in its complaint 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." With no easy way to verify anyone's age, everyone on the Internet must be treated as though they are minors. But what does that mean for material that adults can legally access?
"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," says the complaint. "The Act therefore bans an entire category of constitutionally protected speech between and among adults on the Internet" and is unconstitutional.
The ACLU also worries that the law makes it too easy to take down speech that would be legal for adults to engage in. "Any person who disagrees with or objects to sexual content on the Internet could cause a speaker to be prosecuted under the Act by having a minor view the online speech," says the complaint, "resulting in a 'heckler’s veto' of Internet speech' where the person who objects can always override those who do not.
According to the complaint, the new rules also inappropriately extend Massachusetts law over the entire Internet and violates the Interstate Commerce Clause of the constitution.
The ACLU wants the new legislative language tossed, though it does not object to the original "harmful to minors" law.
Further reading
- Read the complaint (mediacoalition.org)
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