Massachusetts v. The Internet: Commonwealth 0, Internet 2
This week’s cautionary tale in sloppy, reactionary lawmaking comes courtesy (as it so often does) of the Massachusetts legislature.
Our very own Great and General Court, a full-time, democratically-elected, deliberative body which occupies the very “hub of the solar system” (but hasn’t quite gotten around to formally criminalizing human trafficking)1 hastily passed a misguided amendment to our criminal laws earlier this year which effectively attempted to regulate the entire Internet. Here’s how it (literally) went down.
Round 1: “If the Legislature wishes…”
On February 5, 2010, the SJC issued a fairly conservative, by-the-book decision in Commonwealth v. Zubiel, 456 Mass. 27 (2010), in which it strictly construed the text of the G.L.c. 272, §31 to find that the statutory definition of “matter harmful to a minor” did not include instant messaging. The defendant in that case was nailed in a classic To Catch a Predator-style sting following a series of online chats with an undercover officer posing as a 13-year-old version of herself. Over the defendant’s objection, the trial court determined that his Internet chats with the officer constituted an attempt to disseminate “matter harmful to a minor” under G.L.c. 272, §31. The SJC reversed this finding and agreed with the defendant that the statutory definition of “matter”—the most relevant portion of which included “handwritten or printed material”—could not have possibly meant to encompass text-only online communications. In conclusion, the Court quite reasonably found that:
While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in §31 do not do so. If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.
Whatever “judicial activism” may be,2 clearly this ain’t it. The Court stayed well within the lines here and politely invited the Legislature—as, with mixed results, it so often does—to update one of the Commonwealth’s many hundreds of outdated laws.
So it did.
As of July 11, 2010, the new text of §31 defined “matter” as:
…any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, [the original text of the definition ended here] or 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, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.
As someone behind this ridiculously overbroad definition must have known, this kind of thing has been tried on the federal level at least twice within the past fifteen years, and there is a good reason that it has failed both times.3 Rather than targeting creeps who directly and purposefully attempt to inappropriately communicate with children on the Internet, this amendment effectively attempted to criminalize anything on the Internet that a child might see… which is, of course, anything on the Internet.
It is reasonably simple to keep kids out of, say, an adult bookstore or the World Air Sex Championships.4 But, as anyone who has lived in a country with free and regular Internet access within the past twenty years should probably understand, it is nearly impossible to effectively prevent determined minors from accessing an adult book reprinted on a freely-accessible site via a Creative Commons license, let alone a particularly excitable blogger’s detailed description of the winning performance at the World Air Sex Championships.
To recap: In response to the SJC politely pointing out that the Legislature had failed to understand how a given law might apply to the Internet, the Legislature proceeded to demonstrate that it did not understand the Internet at all.
Round 2: If You Can’t Beat ‘Em, Enjoin ‘Em
All of this is, of course, the kind of thing to which any given ACLU lawyer can whip up a written opposition before she has finished her first cup of morning coffee. The inevitable request for a preliminary injunction [PDF] came almost as soon as the new definition became law, with the plaintiffs arguing (as summarized above) that the amended statute was overbroad in that it is nearly impossible to control who might access content which might be deemed “harmful to a minor” on the Internet.
In its commendably-thorough briefing [PDF], the Attorney General’s office was effectively forced to concede that the statute as written would be unconstitutional without an explicit requirement that the sender know that he was purposely disseminating the material to a minor, rather than simply posting such material in a place where a minor might have an opportunity to see it. Although this proposition found little support in the text of the statute itself, the AG did its best to argue that a 2006 SJC case5 had judicially established this kind of purposeful dissemination as an element of the crime, and otherwise relied on the kinds of generalized public policy arguments which typically signal an appellate party’s own self-awareness that a losing battle is about to be lost.
U.S. District Court Judge Rya Zobel’s decision granting the plaintiffs a preliminary injunction came down almost exactly along welcome and expected lines today. The District Court held that Belcher had not squarely ruled on the level of intent necessary for a conviction under this statute, and that the new definition was otherwise simply so overbroad as to be “without question” facially violative of the First Amendment. Given the procedural posture of the case, the court found that it would be inappropriate to strike the statute down completely, and instead granted the plaintiffs a preliminary injunction while inviting both parties to submit a more formal permanent injunction.
We’ll see. It appears likely that the AG’s office will take the District Court up on its offer to come up with an injunction that both parties can live with, but it also has the right to appeal this decision to the First Circuit. More as it happens…
- There’s also an argument to be made that we haven’t quite gotten around to criminalizing distribution of methamphetamine, but maybe more on that another time… [↩]
- And I wouldn’t deny that something approaching this description does occasionally arise in Roberts-era American jurisprudence… but not simply because I disagree with the outcome of a given case. [↩]
- A much narrower and more appropriately-targeted provision requiring certain schools and libraries to install user-side content filters seems to have stuck, so far. [↩]
- This was the only event I could possibly imagine might fall under the purview of the statute’s “dance” provision. [↩]
- Commonwealth v. Belcher, 446 Mass. 693  [↩]