CBLDF Applauds Amendment to 2010 Massachusetts Law Removing Restrictions on Internet Speech

April 12, 2011
By

Following a successful legal challenge from the American Civil Liberties Union of Massachusetts, local booksellers, and others, including the Comic Book Legal Defense Fund, Governor Deval Patrick yesterday signed into law an amendment to controversial 2010 legislation that imposed severe restrictions on Internet content, including discussion of topics such as 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. CBLDF joined the Harvard Book Store, Porter Square Books, the Photographic Resource Center, a licensed marriage and family therapist, trade associations, and the ACLU of Massachusetts in filing suit last 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.”

“Comic book creators and retailers are pleased to see this amendment go into effect, because it protects their constitutionally protected works as they are circulated and sold online,” said Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund.

“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 Chris Finan, President of the American Booksellers Foundation for Free Expression. “The risk of a long jail term for selling books online that are constitutionally protected created a serious chilling effect on the First Amendment.”

“This legislation was necessary to cure the constitutional defects in the law which prompted us to bring suit and required the court to enjoin its enforcement,” said John Reinstein, legal director of the ACLU of Massachusetts. “Since there was no way for websites to determine the age of an Internet browser, and also no way to block Internet users from Massachusetts regardless of the location the website originates from, the law applied to every site on the web, including our own.”

“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 Governor Patrick and effective June 12, the law, 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 may be “harmful to minors,” even though adults 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.

Plaintiffs in the suit against state attorney general Martha Coakley and Massachusetts district attorneys were the American Booksellers Foundation for Free Expression, the ACLU of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund, the Harvard Book Store, Porter Square Books, the Photographic Resource Center, and licensed marriage and family therapist Marty Klein.

The amendment to the law is in Section 19 of House Bill 3318.

For a copy of the complaint and other legal documents related to the case, American Booksellers Foundation for Free Expression v. Coakley, go to:

http://aclum.org/archive#abffe or http://www.mediacoalition.org/Massachusetts-Senate-Bill-997