A coalition of organizations, including publishers and booksellers, filed suit on Tuesday to block a Massachusetts law that would ban certain works from the Internet deemed to be “harmful to minors.” Signed into law this past April, and in effect as of yesterday, Chapter 74 of the Acts of 2010, makes anyone who operates a Web site or communicates through an electornic listserv criminally liable for nudity or sexually related material, if the material is found to be “harmful to minors.” Violators can be fined $10,000 or sentenced to up to five years in prison, or both.
The plaintiffs, however, say the sweeping new law broaches the First Amendment because it is so vague it can be used to ban virtually anything from the Internet, including material adults have a First Amendment right to view. The suit seeks to have the law declared unconstitutional and void on its face, and to enjoin the state from enforcing it.
“The risk of five years in prison or a $10,000 fine will certainly have a chilling effect on booksellers with Web sites that describe their books available online or in a store,” said Chris Finan, President of the American Booksellers Foundation for Free Expression (ABFFE). “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 include the American Civil Liberties Union of Massachusetts, the Association of American Publishers, the Comic Book Legal Defense Fund, the Harvard Book Store, the Photographic Resource Center, Porter Square Books, and licensed marriage and family therapist Marty Klein.
“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.” Since there is no way for sites to determine the age of an Internet browser and there is no way to block Internet users from Massachusetts regardless of the location the Web site originates from, the law threatens Internet users nationwide and even worldwide, ACLU officials add.
The battle recalls the debate and the lawsuit over filtering in public libraries and the subsequent lawsuit over Child Online Protection Act (COPA) in ACLU v. Mukasey. COPA was invalidated by the third Circuit in 2003. In addition, seven state laws containing similar content-based restrictions for online communication have now been struck down or enjoined as unconstitutional, in cases brought by Media Coalition members and ACLU state chapters in Virginia, Vermont, Michigan, New Mexico, Arizona, South Carolina, and New York.
