Massachusetts Legislation Removes Restrictions on Internet Content

On Monday, April 11, Massachusetts Gov. Deval Patrick signed legislation addressing constitutional flaws in a statute that imposed severe restrictions on Internet content. The controversial legislation was blocked by a federal court in October 2010, following a challenge brought by a coalition including Harvard Book Store [1], Porter Square Books [2], the American Booksellers Foundation for Free Expression [3], Media Coalition [4], and others, who contended that the law would have a chilling effect on constitutionally protected speech, including discussions of literature, art, and sexual and reproductive health.

The amendment, which goes into effect immediately, is a direct response to the granting of a preliminary injunction by U.S. District Judge Rya Zobel last fall that found the law likely violated the First Amendment. Massachusetts Attorney General Martha Coakley filed the bill in order to address the constitutional flaws in the existing law.

Harvard Book Store, Porter Square Books, the Photographic Resource Center, a licensed marriage and family therapist, trade associations, and the ACLU of Massachusetts [5] had filed suit in July to block the law because it made providers of constitutionally protected speech on the Internet criminally liable if such material might be deemed “harmful to minors.”

“Bookstore owners and clerks are relieved that the legislature and the governor were willing to address the constitutional problems that forced us to file this lawsuit,” said ABFFE President Chris Finan. “The risk of a long jail term for selling books online that are constitutionally protected created a serious chilling effect on the First Amendment.”

“We are pleased that, after the federal court ruled that the law likely violated the First Amendment, we were able to work with the Attorney General’s office to this fix the law,” said Michael Bamberger, of SNR Denton, general counsel to Media Coalition and lead counsel for the plaintiffs. “The amended law allows the state to protect children from predators without restricting free speech rights.”

Signed in April 2010 by Gov. Patrick and effective June 12, Chapter 74 of the Acts of 2010 made anyone who operates a website or communicates through a listserv criminally liable for disseminating material “harmful to minors,” under the law’s definition, without any requirement that the prosecution prove that the website operator actually intended to send the communication to a minor. In effect, it banned from the Internet anything that might be “harmful to minors,” even though adults might have a First Amendment right to view it. Violators could be fined $10,000 or sentenced to up to five years in prison, or both. On October 27, 2010, Judge Zobel granted a preliminary injunction against the law, which had gone into effect in Massachusetts earlier in the year.

Other plaintiffs in the suit were the Association of American Publishers, the Comic Book Legal Defense Fund, and licensed marriage and family therapist Marty Klein.

A copy of the complaint and other legal documents related to the case, American Booksellers Foundation for Free Expression v. Coakley, are available in the ACLU archive [6].