Bookstores, ABFFE Sue to Block Internet Censorship Law

On Tuesday, July 13, a coalition including the American Booksellers Foundation for Free Expression (ABFFE), Harvard Book Store, and Porter Square Books filed suit to block a broad Massachusetts censorship law that bans constitutionally protected speech on the Internet on topics such as contraception and pregnancy, sexual health, literature, and art.

The law, Chapter 74 of the Acts of 2010, signed in April by Gov. Deval Patrick, went into effect on Monday. It imposes severe restrictions on the distribution of constitutionally protected speech on the Internet and would make anyone who operates a website or communicates through a listserv criminally liable for nudity or sexually related material, if the material can be considered "harmful to minors" under the law's definition, said Media Coalition. In effect, it bans from the Internet anything that may be "harmful to minors," including material adults have a First Amendment right to view.

Violators can be fined $10,000 or sentenced to up to five years in prison, or both.

"The risk of five years in prison or a $10,000 fine will certainly have a chilling effect on booksellers with websites that describe their books available online or in a store," said Chris Finan, president of ABFFE, a member of Media Coalition. "Most bookstores are small businesses, and it is very likely that booksellers will try to avoid problems by engaging in self-censorship."

Other plaintiffs in the suit against state attorney general Martha Coakley and Massachusetts district attorneys are the American Civil Liberties Union of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund, the Photographic Resource Center, and licensed marriage and family therapist Marty Klein.

Since there is no way for websites to determine the age of an Internet browser and no way to block Internet users from Massachusetts regardless of the location of the originating website, Media Coalition said, "The law threatens Internet users nationwide and even worldwide. The suit seeks to have the law declared unconstitutional and void on its face, and to enjoin the state from enforcing it, on the basis of the First and Fourteenth Amendments of the U.S. Constitution, and the Constitution's Commerce Clause."

"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. There are no reasonable technological means that allow Internet users to ascertain the age of anyone who might access their online communications and then restrict access for minors."

"Courts have repeatedly rejected laws that lead to this sort of self-censorship," said Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, general counsel of Media Coalition and counsel in the case. "We should have adequate safeguards to protect children, but those safeguards cannot unreasonably interfere with the rights of adults to access materials protected by the First Amendment."

If the law is struck down, the groups said, it would not limit the state's ability to prosecute obscenity, child pornography, speech intended to entice minors into inappropriate activity, or harassing speech.