Internet predator statute blocked

Federal judge says state’s new obscenity law is too broad

By Peter Schworm
Globe Staff / October 28, 2010

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A federal judge blocked yesterday a new state Internet obscenity law meant to shield children from sexually explicit material, ruling that the statute was written so broadly that it would criminalize legitimate websites and general electronic communication.

The decision was celebrated by civil rights advocates, but it frustrated prosecutors who have encountered difficulty in convicting Internet predators under outdated laws that fail to cover new technologies.

“Due to this preliminary injunction, we are unable to enforce this much needed law,’’ said Plymouth District Attorney Timothy J. Cruz, whose office prosecuted the online predator case that led to yesterday’s ruling.

In that case, a Beverly man was convicted of sending sexually explicit instant messages to a deputy sheriff posing as a 13-year-old girl. But the convictions were overturned in February by the Supreme Judicial Court, which said Massachusetts law did not cover Internet communication and urged the Legislature to update the statute.

After lawmakers hastily passed new language, a coalition of booksellers and website publishers sued, arguing that the new law would hold criminally liable anyone who operates a website with nudity or sexual material, potentially including a vast range of subjects, from art to health information on pregnancy. They said the law failed to distinguish between open websites and obscene material sent knowingly to a child.

In granting a preliminary injunction against the law yesterday, US District Judge Rya W. Zobel said the plaintiffs demonstrated “without question’’ that the law violated the First Amendment by inhibiting free speech, which civil rights advocates called a clear victory.

“This resolves the cloud that was hanging over Internet communication,’’ said John Reinstein, legal director for the American Civil Liberties Union of Massachusetts, one of the plaintiffs in the case. “This lifts a substantial burden of self-censorship on Internet users.’’

Attorney General Martha Coakley’s office, which helped draft the new obscenity law earlier this year, said it was undecided on whether to appeal the judge’s order or change the law. In a statement, Coakley said her office’s goal is “to ensure that our laws keep up with modern technology in order to protect kids from sexual predators on the Internet.’’

The office “will examine whether a legislative change is necessary to ensure that law enforcement has the necessary tools to protect children online,’’ Coakley said.

Through a spokesman, Coakley declined further comment.

In its case before Zobel, the state argued that the language it added to the obscenity law did not need to specify that it applied only to those who intentionally target minors because a previous SJC ruling had made that clear.

“Both sides agreed the statute would otherwise be unconstitutional,’’ Zobel said.’’

The case dates to February, when the state’s highest court ruled that state law banning people from showing pornography to children and banning bookstores from selling sexually explicit books and magazines to children did not cover “electronically transmitted text’’ or “online conversations.

That ruling vacated the convictions of the Beverly man who sent the series of instant messages to the deputy sheriff and said it was the Legislature’s responsibility to update the law.

The resulting law included new passages that barred “any electronic communication’’ including “electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network.’’ The changes went into effect in July. The suit challenging the law was filed days later.

“The injunction was necessary to ensure that all Internet communications were not reduced to the level of what’s appropriate for children,’’ said Michael Bamberger, lead counsel for the plaintiffs, which included the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Comic Book Legal Defense Fund, and the Harvard Book Store.

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