Supreme Judicial Court (February 5, 2010)

Computer texts, or online chats, are not included in the definition of "matter" under M.G.L. c. 272, §31.

The defendant was convicted on four indictments alleging an attempt to disseminate matter harmful to a minor, under M.G.L. c. 272, §28, and as defined in §31. The defendant moved for required findings of not guilty at the close of the Commonwealth's case, which was denied. The defendant appealed, and the SJC transferred the case on its own motion and reversed the defendant's convictions.

The SJC held that the definition of "matter" under §31 does not include electronically transmitted text, or "online conversations." Under the law, "matter" is defined as: 1) Any handwritten or printed material; 2) any visual representation; 3) any live performance; and 4) any sound recording. The SJC disagreed that texts, or online chats, were included as "handwritten or printed material" or as a "visual representation."

"While proscribing the activity in this case would be consistent
with a legislative intent to protect children from sexual abuse
and exploitation, the definitions in §31 do not do so. If the
Legislature wishes to include instant messaging or other electronically
transmitted test in the definition of "matter" under §31, it is for
the Legislature, not the court, to do so."