New Mass. 'Sexting' Obscenity Law Challenged

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By Jason Beahm on July 14, 2010 11:02 AM

What is sexting?

Is it innocent flirting between two (or more) consenting parties? Or is it a dangerous form of pornography corrupting our youth?

Count the American Civil Liberties Union of Massachusetts in the former and the Massachusetts legislature in the latter. The ACLU filed a lawsuit over a new anti-sexting law that it says goes too far. They want the obscenity law challenged on the grounds that it is allowing for the censorship of legal discussion, such as contraception and pregnancy, sexual health, literature and art.

The state has a law intended to ban distribution by the Internet of "matter harmful to minors." In the past "matter" was defined as any "handwritten or printed material, visual representation, live performance or sound recording," including books, magazines, and movies. Earlier this year, the Supreme Judicial Court overturned a conviction for a man who was sexting by sending sexually explicit instant messages to someone he believed was a 13 years old. The court said, "If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition, it is for the Legislature, not the court, to do so."

And so the state attempted to do just that. Massachusetts passed a new state law, to include the following: "any electronic communication including but not limited to electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device." The new law has stiff penalties including up to five years in prison.

The ACLU and other groups, including the Association of American Publishers, the American Booksellers Foundation for Free Expression, the Comic Book Legal Defense Fund, and Harvard Book Store have joined in the suit. They say that the new law is too broad, and that it effectively bans many forms of free speech. They are concerned the law will have a chilling effect and will be used to coerce sites to take down perfectly legal material for fear of being sued or prosecuted.

"Its inevitable effect, if permitted to stand, is that Internet content providers will limit the range of their speech," John Reinstein, legal director of the ACLU of Massachusetts, said in a statement.

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