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Groups try to block law written to shield children on Internet

Lawsuit contends wording too broad

By John M. Guilfoil
Globe Staff / July 14, 2010

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Days after the state toughened up a law aimed at protecting children from offensive material online, advocacy groups moved to strike it down, saying the new law is too broad and cannot be enforced.

The American Civil Liberties Union of Massachusetts and a coalition of booksellers and website publishers filed a lawsuit yesterday seeking to block a new state law that went into effect on Monday. They say the law would call for the removal of all nudity and sexual material from the Internet.

The suit, filed in US District Court in Boston, seeks to strike down parts of Chapter 74 of the Acts of 2010, which the plaintiffs say is a well-intentioned but misguided attempt to shield children from explicit and otherwise harmful material online.

The new law, signed by Governor Deval Patrick on Monday, broadens one prohibiting the dissemination of such material to children.

The previous law banned groups, such as bookstores, from selling sexually explicit books and magazines to children and banned people from showing pornography to children, but it did not cover the Internet. In February, a Beverly man who sent sexually explicit instant messages to someone he thought was a 13-year-old girl had his convictions overturned by the state’s highest court. The Supreme Judicial Court declared that state law did not bar people from sending lewd computer messages to minors.

As a result, the Legislature amended the law this year, adding computers and the Internet to the regulation.

But the plaintiffs say the wording is now too broad and unenforceable, effectively making it illegal for anyone to put anything on the Internet if it could potentially be harmful to minors who might stumble across it online.

“When you’re dealing on the Internet, you have different issues than when dealing with brick and mortar,’’ said Michael Bamberger, a New York lawyer representing the plaintiffs. “When you’re in a bookstore for example, and a minor comes up to the cash register with a book, the bookseller can match the age and maturity of the minor with the appropriateness of the book.’’

Those kinds of person-to-person controls do not exist on websites and e-mail newsletters, Bamberger said.

The content is out there, and minors can access explicit content without a person handing it to them.

The other plaintiffs are American Booksellers for Free Expression, the Association of American Publishers, the Comic Book Legal Defense Fund, the Harvard Book Store Inc., Photographic Resource Center Inc., and Porter Square Books Inc. The suit names state Attorney General Martha Coakley and all of the state district attorneys as defendants.

The state defended the newly worded law yesterday.

“The SJC has noted that the old statute did not address new technology. Our office worked with the Legislature to draft and pass this important new amendment to protect children from sexual predators on the Internet,’’ said Corey Welford, a spokesman for Coakley. “We are prepared to defend the statute against efforts to block this critical new child protection.’’

“This law closes a significant loophole and better enables the Commonwealth to protect children from obscene and harmful material,’’ said Kimberly Haberlin, a spokeswoman for Patrick, who added that his office has not had a chance to review the lawsuit.

“While you can prohibit the electronic transmission of material harmful to minors one on one — the seller to a person he or she knows to be a minor — if you simply draft the law by including the Internet, it would mean that all of those websites would have to be purged,’’ Bamberger said.

The groups also argue that artwork, gay and lesbian resources, sexual health websites, and literature may be regulated by the law.

“While this act may have been motivated by the desire to protect children from sexual predators on the Internet, its effect is much broader,’’ said John Reinstein, legal director of the ACLU of Massachusetts. “Its inevitable effect, if permitted to stand, is that Internet content providers will limit the range of their speech.’’

John M. Guilfoil can be reached at jguilfoil@globe.com.

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