Mass. Extends ‘Matter Harmful to Minors’ to Web, Email, IM, Mobile

BOSTON—A seemingly small but very significant adjustment to Massachusetts' longstanding law against providing “matter harmful to minors” to anyone under the age of 18 has been challenged in federal court by a group of plaintiffs that includes the state chapter of the ACLU, the Association of American Booksellers, the Comic Book Legal Defense Fund, sex therapist Marty Klein and others.

The law, which went into effect Monday, changes the definition of “matter,” which used to include only “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.”

The definition now includes “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.”

In other words, a law that once targeted the physical dissemination of ‘harmful matter’ to minors has been extended to include virtually all of cyberspace, including communication done using email or instant messaging programs. According to the complaint, its breadth is nothing less than staggering.

“Because Internet speakers have no means to restrict minors in Massachusetts from accessing their communications," says the complaint, “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. The Act therefore bans an entire category of constitutionally protected speech between and among adults on the Internet."

AVN contacted criminal defense attorney and Free Speech Coalition Board Chair Jeffrey Douglas for comment.

“The ACLU et al., have it exactly correct,” he said. “The law is facially unconstitutional, incompatible with the CDA and COPA opinions, as well as several other cases striking down state laws against internet content. This law is so comprehensive that it would chill almost any user who has material that has sexual implications. 

“Recognize that harmful matter is not ‘One size fits all,’” he continued. “What is not ‘harmful matter’ for a 17-year-old may well be harmful matter for a 9-year-old. How can a person transmitting material have any idea how old the consumer is? This requires, as a practical effect, that all material be suitable for young children, since why take the risk that a minor could consume the material?”

AVN contacted Marty Klein by phone late Tuesday afternoon.

"I joined this lawsuit for several reason.," he said. "First, in my work I am liable to be judged guilty because the definition of 'harmful to minors' is so vague. I am also participating in this lawsuit on behalf of the many, many, many people whose legitimate work could possibly be prosecuted, and I'm horrified by the idea that the standard of 'harmful to minors' could be applied to work in a country that prides itself on having First Amendment protections about speech." 

The ACLU complaint can be read here.