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Groups challenge obscenity law scope

Called a threat to free speech; Was changed to protect minors

By Denise Lavoie
Associated Press / October 20, 2010

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A coalition of Internet content providers and free-speech advocates told a federal judge yesterday that a new Massachusetts law aimed at protecting children from online sexual predators effectively bans anything that may be considered “harmful to minors,’’ including material that adults have the right to view.

Supporters say the new law closes a loophole that led the state’s highest court to overturn the conviction of a man accused of sending sexually explicit instant messages to someone he believed was a 13-year-old girl.

The Supreme Judicial Court found that the old state law that imposes criminal penalties for disseminating material harmful to minors did not cover electronic communications.

The new law was passed quickly by the Legislature after the high court’s ruling in February. It added instant messages, text messages, e-mail, and other electronic communications.

Penalties include to up to five years in prison or a fine of as much as $10,000 for a first offense.

The American Civil Liberties Union of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund, and others filed a federal lawsuit in July challenging the new law.

Yesterday, the groups asked US District Judge Rya Zobel to issue a preliminary injunction barring the state from enforcing the law as it applies to broad-based Internet communications.

They are not asking to stop the state from enforcing the law as it applies to sexual predators or others who use the Internet to send harmful material to minors.

Zobel did not immediately rule after hearing arguments yesterday.

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.

They mentioned material about contraception, pregnancy, literature, and art that adults have a First Amendment right to view.

Michael Bamberger, a lawyer 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.’’

“You have a statute here that restricts protected speech,’’ Bamberger said.

The content providers say that 18 federal judges in five circuit courts of appeal have struck down similar laws in other states, some on First Amendment grounds.

Attorney General Martha Coakley and the state’s district attorneys, named as defendants in the lawsuit, argued that the content providers have an “unreasonably broad reading’’ of the new law, which they say is not like the laws that were struck down elsewhere.

Assistant Attorney General Jessica Barnett said that the new law only prohibits the dissemination of matter that is obscene to minors under a standard set in a 2006 Supreme Court ruling: 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.

Free-speech advocates said they are concerned that the new law will have a chilling effect.

“We are just afraid that content providers online are going to preemptively censor themselves to stay on the right side of the law,’’ said Christopher Ott, a spokesman for the American Civil Liberties Union of Massachusetts.

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