Blown To Bits

Censorship in Massachusetts

Tuesday, October 19th, 2010 by Harry Lewis

Some time ago I blogged about the Massachusetts Supreme Judicial Court ruling that the state’s definition of “matter” did not include text messages. For that reason some creep avoided a conviction for texting a minor with some material that would have been criminal had the material been printed.

The state legislature rushed in to fix the definition. Here are the before and after definitions of “matter” taken from the state laws:

[ Definition of "Matter'' effective until July 11, 2010. For text effective July 11, 2010, see below.]

“Matter”, any 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.

[ Definition of "Matter'' as amended by 2010, 74, Sec. 2 effective July 11, 2010. For text effective until July 11, 2010, see above.]

“Matter”, any 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.

Now that is certainly inclusive, but probably too inclusive. At least that is the argument being put forward by civil libertarians in challenging the constitutionality of the revised law. From the Associated Press (Washington Post — the Boston papers seem not to have picked up the story):

The content providers say the recent amendments amount to “a broad censorship law” that would ban from the Internet a variety of information that could be seen as harmful to minors, including material about contraception, pregnancy, literature and art that adults have a First Amendment right to view.

Michael Bamberger, an attorney who represents the plaintiffs in the lawsuit, said the way the law is written, adults cannot speak freely in chat rooms “out of fear that minors will see that as well.”

Nonsense, says the Attorney General’s office.

Assistant Attorney General Jessica Barnett said the new law only prohibits the dissemination of matter that is obscene to minors under a standard set in a 2006 Supreme Court ruling, that is, when the person sending the material specifically intends to disseminate it to someone under the age of 18.

“Absent intent to specifically send it to a minor, there is no crime,” Barnett said.

The problem is you can’t tell who is viewing a web page; nor can you control what web pages Massachusetts children are viewing that come from way beyond the horizon of Massachusetts Law. This all looks like yet another quixotic child-protection statute that will not protect children but will arm prosecutors with a handy tool to go after people saying things they don’t like.

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