Massachusetts House Bill 1423 would add a fourth prong to the existing three-prong test to determine what material is “harmful to minors” and may be banned for minors. The fourth prong would apply to content that depicted violence that is patently offensive to “prevailing standards in the adult community, so as to appeal predominantly to the morbid interest in violence of minors.” Disseminating or intending to disseminate such material to a minor would be punishable by up to five years in state prison, a fine of up to $10,000 or both for a first offense.
The purpose of the bill is unclear. It appears to narrow the existing crime for the dissemination of sexually explicit material that is harmful to a minor by applying it only to material that has sexually explicit content and violent content. However, if the intent of the bill is to criminalize material that contains sexual content or violent content, the latter reading would violate the First Amendment, since it is constitutionally impermissible to criminalize speech with violent content.
Speech is protected by the First Amendment unless it falls into a few very narrow classes, including defamation, incitement and obscenity. None of these types of speech cited by the Supreme Court include speech with violent content alone. Violent content in otherwise constitutionally protected material is not a permissible subject of government regulation for adults or minors.