Last year, Massachusetts passed a 'harmful to minors' law that extended to content sent over e-mail, instant messaging, texting, or the Web. If you sent such "harmful" material to a minor, you could be fined $10,000 and spend up to five years in jail—even though the Internet provides no mechanism for verifying either identity or location. The law was struck down by a federal judge last October; this week, Massachusetts finally fixed the law's problems.
Massachusetts' initial law on 'Crimes against chastity, morality, decency, and good order' targeted only physical forms of obscenity. After all, it is easy to check an ID when selling a pornographic magazine across a counter. But last year's expanded law covered much, much more, including:
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 bill, later signed into law, was so broad that it could have made any American liable for penalties. As the American Civil Liberties Union argued at the time, '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?
The ACLU and others sued; federal judge Rya Zobel agreed and issued an injunction against the law on First Amendment freedom of speech grounds. The law contained no requirement that the offending material 'was purposefully disseminated to a person [the sender] knew to be a minor.' Without this 'intent' requirement, the law was likely to sweep up large volumes of legal, Internet-mediated speech meant for adults.
A year after the bill passed into law, Massachusetts governor Deval Patrick has finally signed an amendment addressing Judge Zobel's injunction and adding an intent requirement.
The free speech coalition that sued the state praised the move. 'We are pleased that, after the federal court ruled that the law likely violated the First Amendment, we were able to work with the Attorney General's office to this fix the law,' said Michael Bamberger, lead lawyer on the case. 'The amended law allows the state to protect children from predators without restricting free speech rights.'
Getting it right
The whole saga is an object lesson of the principle that good law isn't usually created by rushing reactionary legislation to a vote. Massachusetts tried to amend the law in the first place as a reaction to a February 2010 state supreme court ruling that overturned the conviction of a man who engaged in lurid instant messaging chats with someone whom he believed to be 13 (in reality, 'she' was the police, who arrested the man when he tried to meet the 'girl,' so no actual minors were affected in the case).
The court said that the existing law didn't cover electronic communications, so the legislature quickly passed its sweeping change. A little more care in the law's crafting could have prevented a year's worth of legal wrangling.
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