Massachusetts has become the latest state to try to try to protect minors from sexual content online at the expense of First Amendment rights. Like many states, Massachusetts has long had laws on the books making it a crime to provide minors with material deemed “harmful to minors.” But the law did not extend to electronic communications. Concerns about minors accessing sexual content online, and the use of email and text messages to send sexual content to minors, caused the legislature to amend the law. However, like many similar efforts in the past, the law enacted by Massachusetts goes too far by making it a crime to post or send material that is protected for adults, but might be deemed harmful to minors, on the chance that a minor might see it.
A number of other states have tried – unsuccessfully – to expand their laws protecting minors from sexual content by making it a crime to post otherwise legal material. All have been struck down or substantially narrowed by the courts. A similar effort in Congress, the Child Online Protection Act (COPA), which was similar to the Massachusetts law, was also found unconstitutional.
The Massachusetts law, the ones that have gone before it, not only infringe the rights of adults, they also have a serious chilling effect on online speech: who would post something that might be considered harmful to minors, if they could be fined $10,000 or sent to jail for up to five years?
The law has been challenged by a several groups, including NCAC member organizations: the American Booksellers Foundation for Free Expression, the Association of American Publishers, and the ACLU.