Federal Judge Says Expanded Mass. Obscenity Law Violates 1st Amendment

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In American Booksellers Foundation for Free Expression et al v. Coakley et al. (Case No. 10-11165), U.S. District Court for the District of Massachusetts Judge Rya Zobel last week enjoined the enforcement of an amended Massachusetts statute that prohibited disseminating electronic information "harmful to minors" on the grounds that it violated the First Amendment.


In a 9-page memorandum of decision, Judge Zobel said Sections 2 and 34 of Chapter 74 of the Acts of 2010 signed by Gov. Deval Patrick last April that amended M.G.L. c. 272, secs. 28 and 31 were overbroad and unconstitutional.  Among the plaintiffs who challenged the amendments were booksellers, publishers, a nonprofit photographic association and a marriage and family therapist. The plaintiffs sought an injunction, arguing that the statutory revisions exposed adults who distribute 1st Amendment-protected sexually explicit information electronically to liability because minors may be recipients of the material without the adults' knowledge.

Massachusetts legislators amended a 1982 law that made it a crime to distribute visual, written or printed material harmful to minors to incorporate email, instant messages, and the like after a Supreme Judicial Court decision last February reversed the conviction of  a man who sent sexually graphic text messages to undercover police posing as a 13-year-old girl on the grounds that the law did not contemplate online communications.

Critics said the amendments to the statute were poorly drafted and inhibited free speech by exposing adults, for example, to criminal liability for transmitting data about pregnancy or health issues. Violators faced a $10,000 fine and up to five years' jail time under the amended law.