The Massachusetts statute that criminalizes the dissemination of “any matter harmful to minors” is inapplicable to electronically transmitted text or online instant messaging conversations, the Massachusetts Supreme Judicial Court ruled. The court noted that the statutory definition of “matter” includes “handwritten or printed material” and “visual representations,” but does not include language that would encompass online electronically transmitted conversations. The text and instant messages in question were not “visual representations,” the court found, because that term referred to photographs and other images, not text. Nor did the messages constitute “handwritten or printed material,” as defined by dictionaries or prior judicial opinions construing those terms, the court concluded.
Commonwealth v. Zubiel, 456 Mass. 27, 2010 Mass. LEXIS 24 (Mass. Feb. 5, 2010) Download PDF
Editor's Note: In a ruling several days after the ruling in Zubiel, a Massachusetts trial court ruled that the creation and transmission of a photograph to a minor via a cellular phone fell within the “harmful to minors” statute, because the statutory definition of “visual material” expressly included computer images. The court also took judicial notice of the fact that “many of the devices we commonly refer to as cellular telephones have the technological capabilities of computers,” and thus fell within the statutory definition of “visual material,” which includes “pictures—moving or still, whether on paper, film or computer.” Commonwealth v. Romero, 26 Mass. L. Rep. 458, 2010 Mass. Super. Lexis 22 (Mass. Super. Ct. Feb. 11, 2010)