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Massachusetts censors IMs, SMS, e-mail and web

By J. DeVoy

Massachusetts has long had laws prohibiting individuals from providing minors with “harmful matter” under the state’s Crimes against chastity, morality, decency and good order law.  As Ars Technica reports, though, this law is getting an important update.  Effective yesterday, the material that may harm minors now includes:

[A]ny handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, or 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 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. (source, emphasis added.)

The law is already being challenged by several parties, including the Comic Book Legal Defense Fund and ACLU.  Though the ACLU does not object to the original statute protecting minors, it does seek to have the court strike down this new language.

The complaint, available here, contains strong language against the new legislation.  Of note in ¶ 4, the plaintiffs note that virtually every other state to pass a similar restriction has had it struck down, except for Ohio.  In ¶ 10, the new law’s consequences are laid bare: “Since all speech on the Internet is accessible in Massachusetts, regardless of the geographical location of the person who posted it, the Act threatens Internet communications nationwide and even worldwide.”

If precedent is any indication, the court will strike down this law or let it stand only if its application is significantly narrower than its written scope, as seen in American Booksellers Foundation for Free Expression v. Strickland, 601 F.3d 622 (6th Cir. 2010).  A full condemnation of the language is preferable, but any restriction on the language’s application will be a victory for free expression.

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