Massachusetts Senate Bill 997 would expand the definition of material in the state’s existing “harmful to minors” law to include any electronic communication.
Gov. Deval Patrick signed the bill into law.
Media Coalition filed a legal challenge to the law, American Booksellers Foundation for Free Expression v. Coakley. The U.S. District Court granted a preliminary injunction blocking enforcement of the law.
The Massachusetts legislature passed House Bill 3318 in 2011, to amend the “harmful to minors” law so that it would apply only to electronic communication sent to someone that the speaker has specific, rather than general, knowledge is a minor or believes to be a minor. Gov. Patrick signed H.B. 3318 into law.
By applying the state’s “harmful to minors” law to electronic communication, the bill makes every website, listserv, chatroom or social networking site susceptible to prosecution, regardless of whether or not the speaker intended that minors access the speech.
This provision was introduced in response to a recent decision by the Massachusetts Supreme Judicial Court in Commonwealth v. Zubiel, in which the court ruled that the state’s law does not apply to electronic communication, such as email and text messaging. However, the ruling can and should be addressed with a narrower change to existing law that will not infringe on the First Amendment.
The application to material generally available on the internet goes far beyond protecting minors from adults sending email or texts to a specific minor or minors and is likely overbroad. It would threaten speech on the internet that is neither written for minors nor intended for them to access. Courts have struck down similar laws that apply “harmful to minors” restrictions on communication generally available on the internet, because they infringe the free speech rights of adults.
The legislature can draft a narrower law that is limited to electronic communication that an adult directs to a specific person known by the adult to be a minor. Such a law could pass constitutional muster.
- On January 20, 2009, the bill was introduced  and referred to the Senate Committee on Public Safety and Homeland Security. As introduced, the bill created punishments for assault on a correctional officer.
- The committee recommended the bill be passed on September 22, 2009. The Senate passed the bill on January 13, 2010 and sent it to the House for consideration. The bill was referred to the House Committee Steering, Policy and Scheduling.
- The House made amendments to the bill. The bill passed as amended and was sent back to the Senate for concurrence. The Senate concurred with the House amendments and made further amendments to the bill. The bill was sent back to the House for concurrence.
- On March 24, 2010, the House amended the bill  to add Sections 2 and 3 that expanded the definition of material in the existing “harmful to minors” law to include any electronic communication. The House passed the bill as amended and sent it to the Senate for concurrence. The Senate concurred with the House amendment.
- The bill was sent to Gov. Deval Patrick for his signature.
- On March 30, 2010, Media Coalition sent a letter to Gov. Patrick , asking him to veto the bill. The letter explained the constitutional issues with Sections 2 and 3.
- On April 1, 2010, Gov. Patrick sent back the bill to the legislature with proposed changes. The changes concern only the first part of the bill, regarding assaults on correctional officers.
- The Senate amended the bill to include Gov. Patrick’s proposed changes. The Senate sent it back to the House for concurrence.
- On April 5, 2010, Media Coalition sent a letter to House Speaker Robert De Leo , urging the legislature to also reconsider Sections 2 and 3 of the bill.
- The House concurred with the Senate changes. Gov. Patrick signed the bill into law on April 13, 2010. It goes into effect July 12, 2010.
On July 13, 2010, Media Coalition filed a legal challenge to the law in the U.S. District Court for the Eastern District of Massachusetts. The case is American Booksellers Foundation for Free Expression v. Coakley.
On October 26, 2010, U.S. District Judge Rya Zobel granted a preliminary injunction blocking enforcement of the law.
During the 2011 legislative session, the Massachusetts legislature introduced and passed House Bill 3318 . The bill limits the state’s “harmful to minors” law to electronic communication sent to a person that the speaker has specific knowledge is a minor or believes to be a minor. Gov. Patrick signed the new bill into law on April 11, 2011.