Even so, there is nothing to prevent police from using such laws to make life difficult — and expensive — for people they consider to be disruptive, according to Harvey A. Silverglate, a civil rights lawyer who is a board member of the American Civil Liberties Union of Massachusetts.
“If a cop wants to get somebody, they can charge them for blasphemy, for instance, and it’ll be thrown out later, but to get to that point is very expensive,’’ Silverglate said in an interview. ‘’The statutes you see on the books are used more for abuse than use.”
To many, spitting on a sidewalk, which carries a $20 fine, or tweaking “The Star-Spangled Banner” in public, would also hardly raise an eyebrow, let alone seem criminal. The law on spitting in public hit the books in 1906. The statute on “The Star-Spangled Banner,” which calls for a fine of up to $100, was written in 1917. Neither has been repealed.
“There are dangers to having old and moldy and sometimes laughable laws on the books,’’ said Ann Lambert, an ACLU lawyer. “Those laws send messages that people can still be charged. It seems irresponsible not to do the housekeeping and have them repealed.’’
Silverglate said there is a tendency among legislatures, both state and federal, to leave statutes like these on the books.
“This isn’t just a Massachusetts phenomenon, but since it’s such an old state, some of the statutes go back to archaic times,” Silverglate said. “I think we have a worse problem than elsewhere, not because we’re worse people or have harassing police, but because we have so many of these . . . laws, some of them going back to the 17th century.”
Many other states have antiquated laws. In Delaware, for instance, it is illegal to show an R-rated movie at a drive-in theater. In Georgia, it is illegal to live on a boat for more than 30 days in a calendar year. And in Tennessee, it is illegal to carry a skunk into the state.
Massachusetts is not the only state that still outlaws fornication (1692), oral and anal sex (1887), and belonging to subversive organizations (1951). In 1951, the state passed a series of anti-Communism laws. Among them was a statute declaring the Communist Party a subversive organization and a law calling for up to one year imprisonment of people who allowed the Communist Party to hold functions in their auditorium, hall, or building.
“We have not made any real effort to repeal these laws, though it’s certainly something that ought to be done,” said Roberta Wood, secretary-treasurer of the Communist Party USA. “We don’t know of any cases where these laws have actually been enforced. I don’t think there’s been much judicial action against the free speech of Communists since the McCarthy era.”
According to Wood, there are similar anti-Communist laws that have been left undisturbed in more than a dozen other states.
Among the other targets of repeal by the two lawmakers is a 1762 law on adultery that calls for up to three years of imprisonment for married people who have sexual intercourse with someone who is not their spouse. The 1692 law against fornication, sexual intercourse between an unmarried man and woman, calls for a prison term of up to three months.
Left on the books, some of the laws may place people unwittingly in criminal jeopardy.
Boston lawyer Michael J. McCormack said he once advised a client who was the third party in a civil divorce action not to admit to adultery.
“I said to him, if you get up there, testify, and admit to having an affair, you can be in trouble because adultery is still a crime in Massachusetts,” said McCormack, a former prosecutor. “He was dumbfounded.”
Ultimately, McCormack’s client invoked his constitutional right against self-incrimination and did not testify.
In addition to Carden and Lee, this article was reported by Meg Heckman, the graduate assistant in a seminar in investigative reporting at Northeastern University. Their work was overseen by journalism professor Walter V. Robinson, a former editor of the Globe Spotlight Team. He can be reached at email@example.com. Confidential messages can be left at 617-929-3334.