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Bill aims to close obscenity loophole

Knowingly sending message to minor would be crime

By Bob Salsberg
Associated Press / February 5, 2011

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Prosecutors would have to show that a suspected sexual predator purposely and knowingly sent obscene electronic messages to a minor under legislation aimed at fixing a loophole in Massachusetts law first exposed by the state’s highest court a year ago.

The bill is the latest effort by lawmakers to reconcile free speech rights with the desire to protect children from predators who use modern day tools such as the Internet, sexually-explicit text messages, or e-mails to entice their victims. A federal judge put on hold an earlier attempt to bring the law up to date, saying that the wording was too broad.

Under the proposal, a person who purposely disseminates harmful material to a minor could be sentenced to up to five years in prison. But the legislation stipulates that a person could not be prosecuted for sending an inappropriate electronic message “unless he specifically intends to direct the communication to a person or persons he knows or believes to be a minor or minors.’’

The specific intent clause is critical because it is designed to satisfy concerns expressed by free speech groups — which won the backing of a federal judge last fall — that the current law defines “harmful material’’ so broadly that it could be applied to websites that contain sexual material or nudity but are targeted at adults, not children.

On Feb. 5, 2010, the Supreme Judicial Court overturned the conviction of Mark Zubiel, a Beverly man who was accused of sending sexually graphic instant messages to someone he believed was a 13-year-old girl. The justices agreed with Zubiel’s argument that “harmful material’’ banned under the law in effect at the time didn’t include instant messages or other forms of electronic communication.

The Legislature quickly passed a bill amending the law to close the loophole. But the fix itself soon ran into trouble.

In October, a federal judge granted a preliminary injunction blocking the changes. Internet content providers, the American Civil Liberties Union of Massachusetts, and other groups argued in a lawsuit that the reworded law was so broad that it could effectively ban from the Internet material that may be considered “harmful to minors,’’ but that adults have the right to view.

US District Judge Rya Zobel agreed that would violate the First Amendment.

“The world is much different now with the Internet . . . and social networks,’’ said Senator Cynthia Creem, Democrat of Newton, who is cosponsoring the bill intended to correct the law.

“Predators can reach minors through a whole different mode,’’ she said.

Creem said the measure would address issues such as “sexting’’ — the texting of nude pictures — to minors — without interfering with the free speech rights of consenting adults.

“We think the bill will resolve the issues in the lawsuit,’’ said John Reinstein, legal director for the American Civil Liberties Union of Massachusetts.

Reinstein cautioned, however, that the measure is only a proposal and must be passed by the Legislature before the suit is withdrawn. Plaintiffs have made clear they are not trying to block prosecution of sexual predators who use the Internet.

Attorney General Martha Coakley has listed the bill as one of her priorities for the legislative session that began in January.