American Booksellers Foundation for Free Expression v. Coakley

No. 10-11165, 2010 WL 4273802 (D. Mass. Oct. 26, 2010)

In October 2010, the U.S. District Court for the Eastern District of Massachusetts granted a preliminary injunction blocking the enforcement of a Massachusetts law that criminalized any electronic distribution of “harmful to minors” material. The Massachusetts legislature then passed an amendment to the law addressing the constitutional issues, which Governor Deval Patrick signed in April 2011.

Litigation history:
On July 13, 2010, Media Coalition filed a lawsuit [5] in the U.S. District Court for the Eastern District of Massachusetts on behalf of some of its members, local booksellers, the Massachusetts ACLU and others, arguing that a Massachusetts law that criminalizes any electronic distribution of material “harmful to minors” violated the First Amendment. The law [6], which included content posted on the Internet or listservs, could potentially ban constitutionally protected speech about art, literature, sexual health and other topics.

Plaintiffs filed a motion for preliminary injunction supported by nine declarations — one from each plaintiff and one from an Internet expert — and a supporting brief [4] on July 27, 2010. The Commonwealth of Massachusetts filed a brief in opposition [3] to the motion for preliminary injunction on August 26.

On October 19, 2010, U.S. District Judge Rya Zobel heard the arguments in the case.

On October 26, 2010, Judge Zobel issued a preliminary injunction [2] blocking enforcement of the law, on the ground that the statute contains no requirement that a sender knowingly or purposefully disseminates “harmful” material to a specific minor.

In March 2011, House Bill 3318 was introduced [1], which included a section amending the Massachusetts’ electronic “harmful to minors” law. The amendment made it so that the law applied only to someone who disseminates the “harmful” material to someone known or believed to be a minor. The legislature passed the bill and Governor Deval Patrick signed it into law on April 11, 2011.

American Booksellers Foundation for Free Expression, Association of American Publishers, Comic Book Legal Defense Fund, American Civil Liberties Union of Massachusetts, Harvard Book Store, Photographic Resource Center, Porter Square Books and Marty Klein

Legislative history:
In 2010, Massachusetts Senate Bill 997 [6] was introduced, which deals with punishing assault and battery by a bodily substance on correctional facility workers. While the House was considering the bill, provisions were added to the bill that would extend the state’s “harmful to minors” law to apply to electronic media, in addition to traditional media. The legislature passed the bill with the new provisions included.

On March 30, 2010, Media Coalition sent a letter to Massachusetts Governor Deval Patrick [8] urging him to either veto the provisions in the bill or return it to the legislature for reconsideration. The letter explained that the Internet is different from traditional media, and because there is no way to know whether the content will be accessed by a minor or an adult, the law would restrict the First Amendment rights of adults. The letter also explained that the bill could be rewritten to pass constitutional muster, by limiting its application only when the sender knows or believes the person receiving the “harmful to minors” material is a minor.

Governor Patrick returned the bill to the legislature proposing an amendment only to the section concerning correctional facility workers. On April 5, 2010, Media Coalition sent a letter to Massachusetts Speaker of the House Robert De Leo [7], asking that the sections regarding the “harmful to minors” law be reconsidered by legislature.

On April 8, 2010, the Massachusetts legislature passed the bill once again without amending the “harmful to minors” section. Governor Patrick signed the bill into law five days later.