Court Finds “Harmful To Minors” Law Unconstitutional

A Federal Judge in Massachusetts yesterday enjoined enforcement of a new Massachusetts statute that sought to criminalize the electronic dissemination of material “harmful to minors.” The law that was enjoined was passed as a result of a ruling last February by the Massachusetts Supreme Court which held that the state law in place at that time – which prohibited the distribution of material harmful to minors – didn’t cover electronic communications. To close that loophole, the legislature adopted a definition of “harmful matter” that includes: any electronic communication, including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network[.] And that definition is what led to the lawsuit. The Massachusetts ACLU argues that the definition is too broad because legitimate Web sites that are generally accessible have no way of knowing who is visiting. As written though, the Massachusetts law would apply to that situation. And that’s what makes it over broad. The injunction is preliminary, and so not the final word. But it’s a pretty strong indicator of what the final judgment may be. It seems like a fairly simple fix – just add a “knowing” clause to the law. But when legislatures and courts square off, the solutions never seem to too quickly.