July 26 – Aug 1, 2010 Edition Booksellers Oppose Law to Restrict Free Speech on Web

AUTHORLINK NEWS/July 26, 2010–A coalition of booksellers and first amendment supporters is trying to block a new Massachusetts law that aims to protect kids from online predators, but also bans constitutionally protected speech, including topics like contraception and pregnancy, sexual health, literature, and art.

According to an article by the School Library Journal, a lawsuit has been filed by the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Comic Book Legal Defense Fund, and others. They say the new law, signed in April by Governor Patrick and which went into effect last week, imposes severe restrictions on the distribution of constitutionally protected speech on the Internet.

The goal of the lawsuit is to have the law declared unconstitutional and void–and to enjoin the state from enforcing it on the basis of the First and Fourteenth Amendments of the U.S. Constitution, and the Constitution’s Commerce Clause.

Under the law, anyone who operates a website or communicates through a listserv can be held criminally liable for nudity or sexually related material if it’s considered “harmful to minors.” In short, it bans from the Internet anything that may be “harmful to minors,” including materials that adults have a First Amendment right to view. Those who break the law can be fined $10,000 or sentenced to up to five years in prison, or both. “[This] will certainly have a chilling effect on booksellers with websites that describe their books available online or in a store,” says Chris Finan, President of the American Booksellers Foundation for Free Expression (ABFFE). “Most bookstores are small businesses, and it is very likely that booksellers will try to avoid problems by engaging in self censorship.”

Since websites can’t determine the age of an Internet browser, and there’s no way to block users from Massachusetts regardless of the location the website originates from, the law threatens Internet users nationwide and even worldwide, says the American Civil Liberties Union.

“While this Act may have been motivated by the desire to protect children from sexual predators on the Internet, its effect is much broader,” says John Reinstein, legal director of the ACLU of Massachusetts. “Its’ inevitable effect, if permitted to stand, is that Internet content providers will limit the range of their speech. There are no reasonable technological means that allow Internet users to ascertain the age of anyone who might access their online communications and then restrict access for minors.”

The lawsuit does have precedent in previous court decisions. In 1997’s Reno v. ACLU, the U.S. Supreme Court unanimously invalidated the federal Communications Decency Act on First Amendment grounds because it restricted online communication. In 2003, the Third Circuit invalidated the federal Child Online Protection Act (COPA) in ACLU v. Mukasey. And seven states-Virginia, Vermont, Michigan, New Mexico, Arizona, South Carolina, and New York-have struck down or enjoined as unconstitutional laws with similar content-based restrictions for online communication. “Courts have repeatedly rejected laws that lead to this sort of self-censorship,” says Michael Bamberger of Sonnenschein Nath & Rosenthal, an attorney in this case. “We should have adequate safeguards to protect children, but those safeguards cannot unreasonably interfere with the rights of adults to access materials protected by the First Amendment.”

If the new law is struck down, it will not limit Massachusetts’s ability to prosecute obscenity, child pornography, and speech intended to entice minors into inappropriate activity, or harassing speech.

“This law must not be allowed to reduce all Internet content and discussion to a level suitable for young children,” says Carol Rose, executive director of the ACLU of Massachusetts.