ACLU Right to Protest Potentially Censorious Changes to Mass. State Law
This week the Open Media Boston inbox has been echoing with alarums from various civil liberties organizations - the Mass. Chapter of the American Civil Liberties Union at their forefront - about a law that Gov. Deval Patrick signed back in April that would levy harsh penalties against those who somebody or other decides have disseminated material harmful to minors. The legal changes contained in the new law modify existing language in everyone's favorite section of the Mass. General Laws ... Chapter 272 ... a.k.a. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER [capitalization theirs - Ed.]. This is the chapter that covers Adultery, Polygamy, Incestuous marriage or intercourse, Fornication, Bestiality and so on and so forth. But it's best known of late as the chapter that deals with anything that might corrupt young people in some way. So, if you can follow the scoreboard here for a minute, Patrick signed a new law - Chapter 74 of the Acts of 2010 - that in turn modified Section 31 (Definitions) of Chapter 272. The definitions section in turn affects a number of other sections in Chapter 272 that deal with exposing kids to naughty materials and/or using kids as the subjects of naughty materials.
Many of the existing sections of Chapter 272 are already questionable on civil libertarian grounds, but the deal with the new language is that it expands the old definition of "materials" covered by the 272 to include the internet (yes, that's right, the same medium that brags that it's "now 90 percent pr0n!"). While most good and nice people - like your pals at Open Media Boston - are certainly against anything that might harm or otherwise mess with kids, this new language crosses a number of problematic lines.
The main complaint by the ACLU and other plaintiffs to the suit they've just filed against Mass. Attorney General Martha Coakley and Mass. district attorneys is that the Chapter 74 additions to Chapter 272 language "could make anyone who operates a website or communicates through a listserv criminally liable for nudity or sexually related material."
Of course, lots of people running modern social media websites and lots of listservs - and lots of bookstores with online catalogs - have materials in violation of the new expanded law available for public viewing and could be conceivably charged with a crime. Vanishingly few of these entities create the material in question, and a vanishingly small amount of said material is likely to offend many people or harm any kids. Plus, many of the people in question don't have full control over the material that gets places on their sites and lists. Because the modern web allows lots of people to post to lots of websites and listservs with relative impunity - and covered by the fact that most of their contributions are protected speech under the Constitution.
The ACLU then points out that people successfully prosecuted thanks to the new law could face a $10,000 fine or up to five years in prison, or both. Which certainly sounds like a return to 1950s censorship to me. So I want to state for the record that this publication opposes language likely to result in the arrest and prosecution of upstanding website owners, listserv managers and bookstore owners.
I'll certainly want to keep an eye on the ACLU's suit as it develops, but folks who'd like more info on this issue at this early stage should check out their press release athttp://www.aclum.org/news/20100713.php and then check out the relevant Mass. General Laws (searching the name of the relevant chapter and section in a search engine usually brings up the relevant links quickly).
One amusing note, the Mass. ACLU left out the name of Chapter 74 of the Acts of 2010 from their release. Turns out that our ever-efficient Beacon Hill solons decided to kill two birds with one stone in the new law. They dealt both with the new censorious stuff, and with ... um ... throwing doo-doo at prison screws.
I mean, seriously, you can't make this stuff up. Here's the full language of Chapter 74 - presented, as ever, in the public interest ...
Chapter 74 of the Acts of 2010
AN ACT RELATIVE TO ASSAULT AND BATTERY BY MEANS OF A BODILY SUBSTANCE UPON CORRECTIONAL FACILITY EMPLOYEES AND EXPANDING THE PROHIBITION ON THE DISSEMINATION OF OBSCENITY.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:
SECTION 1. Chapter 127 of the General Laws is hereby amended by striking out section 38B, as appearing in the 2008 Official Edition, and inserting in place thereof the following section:- Section 38B. (a) For the purposes of this section, “bodily substance” shall mean any human secretion, discharge or emission including, but not limited to, blood, saliva, mucous, semen, urine or feces. (b) Any person in the custody of a correctional facility, including any jail, house of correction or state prison, who commits an assault or an assault and battery upon an officer or other employee, any volunteer or employee of a contractor in any such facility or any duly authorized officer or other employee of any such facility engaged in the transportation of a prisoner for any lawful purpose shall be punished by imprisonment for not more than 2 and one-half years in a jail or house of correction or for not more than 10 years in a state prison. Such sentence shall begin from and after all sentences currently outstanding and unserved at the time of said assault or assault and battery. (c) Any person in the custody of a correctional facility, including any jail, house of correction or state prison, who commits an assault or an assault and battery by means of a bodily substance upon an officer or other employee, any volunteer or employee of a contractor in any such facility or any duly authorized officer or other employee of any such facility engaged in the transportation of a prisoner for any lawful purpose shall be punished by imprisonment for not more than 2 and one-half years in a jail or house of correction or for not more than 10 years in a state prison. Such sentence shall begin from and after all sentences currently outstanding and unserved at the time of said assault or assault and battery.
SECTION 1A. Section 26 of chapter 218 of the General Laws, as so appearing, is hereby amended by inserting after the word “ninety-four C”, in line 16, the following words:- , section 38B of chapter 127.
SECTION 2. Section 31 of chapter 272 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in lines 40 to 43, inclusive, the definition of “Matter” and inserting in place thereof the following definition:- “Matter”, 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, 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. SECTION 3. The definition of “visual material” in said section 31 of said chapter 272, as so appearing, is hereby amended, by inserting after the word “computer”, the following words:- , telephone or any other device capable of electronic data storage or transmission.
Approved, April 12, 2010.
Jason Pramas is Editor/Publisher of Open Media Boston
