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Massachusetts Law About Obscenity

Massachusetts Laws

MGL c.272, s.28-31:

Massachusetts Cases

American Booksellers Foundation for Free Expression v. Coakley, US Dist. Ct. (Mass.), 10/16/2010. "Plaintiffs have demonstrated, without question, that the 2010 amendments to §§ 28 and 31 violate the First Amendment." A preliminary injunction was issued barring enforcement of St.2010, c.74.

Commonwealth v. Kereakoglow, 456 Mass. 225 (2010). A jury must apply the "prevailing standards of the adults of the county [in which the offense occurred], rather than their own normative views when determining if material is "patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors."

Commonwealth v. Kocinski, 11 Mass.App.Ct. 120 (1981) "While nude dancing is protected speech, when it is combined with "hard-core" sexual conduct it may lose its protected status."

Commonwealth v. Lotten Books, Inc., 12 Mass.App.Ct. 625 (1981). A conviction of a charge of distributing obscene material requires "(1) that the material was obscene; (2) that [the defendant] possessed the material; (3) that it knew the material to be obscene; and (4) that it intended to disseminate the material."

Commonwealth v. Sullivan, 82 Mass. App. Ct. 293 (2012). Lengthy discussion (particularly in the dissent) of what constitutes "lewd exhibition" in a child pornography case involving a picture of an adolescent girl.

Commonwealth v. Zubiel, 456 Mass. 27 (2010). "'[M]atter,' as defined in [previous version of] G. L. c. 272, § 31, does not encompass electronically transmitted text, or "online conversations," for the purposes of a prosecution for attempted dissemination of matter harmful to a minor under G. L. c. 272, § 28."

Federal Laws

Federal Regulations

47 CFR 73.3999 FCC Restrictions on the transmission of obscene and indecent material. Prohibits broadcast of obscene material at all times and indecent material between  6 a.m. and 10 p.m.

Federal Cases

Miller v. California, 413 US 15 (1973). The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest... ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Fox Television Stations, Inc. v. FCC, 613 F3d 317(2010). On remand from the Supreme Court, this 2d Circuit case struck down a government policy that said broadcasters could be fined for allowing even a single curse word on live television, saying it is unconstitutionally vague and threatens speech "at the heart of the First Amendment."

FCC v. Pacifica Foundation, 438 US 726 (1978) Seven dirty words case. Distinguishes indecent speech from obscenity and explains that context is as important as content in regulating broadcast of indecent speech.

Pope v. Illinois, 481 US 497 (1987). "The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, and scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole."

Reno v. ACLU, 521 US 844 (1997). The Communications Decency Act of 1996's restrictions on indecent or patently offensive material (as opposed to obscene material) are an unconstitutional abridgement of free speech.

Sable Communications of California v. FCC, 492 US 115 (1989). In a case involving dial-a-porn, the court held that indecent, sexually explicit telephone messages are protected by the First Amendment.

Smith v. United States, 431 US 291 (1977). Provides guidance for states in regulating obscenity. Explains that while the first and second prongs of the Miller test are based on community standards, the third is not.

Other Web Sources

Citizen's Guide to Federal Child Exploitation Laws: Child Pornography, US Dept. of Justice. A concise summary of federal laws and cases regarding child pornography.

Golden Globe Awards Order, FCC 2004. Even a single fleeting, non-literal expletive use of the F-word in a broadcast is prohibited.

Regulation of Obscenity, Indecency and Profanity, Federal Communications Commission. Includes information on FCC regulation of broadcasts and how to file a complaint.

Sexting, Berkshire District Attorney. Explains the application of Massachusetts law to "sexting" activities.

Sexting Probed as Child Porn, Boston Globe, March 6, 2010. Discusses a Massachusetts case in which "a nude photo of an adolescent girl... may have been forwarded to as many as 40 or 50 students."

Print Sources

Mass. Practice: