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Massachusetts law about obscenity

A compilation of laws, regulations, cases, and web sources on obscenity law.

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Massachusetts laws

MGL c.272, s.28-31:

Massachusetts cases

Commonwealth v. Jones, 471 Mass. 138 (2015)
"During the time period alleged in a 2012 indictment charging the defendant with dissemination of matter harmful to a child, G. L. c. 272, § 28, was not unconstitutionally overbroad, in that that it implicitly required, as an element of the crime, knowledge that the recipient was a minor."

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.

Massachusetts jury instructions

District Court Model Criminal Jury Instruction7180-Disseminating Obscene Matter; Possessing Obscene Matter to Disseminate (G.L. c. 272, s. 29)

Federal laws

18 USC 1460-1470 Obscenity
18 USC 2252-2252C Material involving the sexual exploitation of minors
47 USC 223(d) Using a telecommunications device to send obscene material to a minor
47 USC 231 Restriction of access by minors to materials commercially distributed by means of World Wide Web that are harmful to minors

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)
7 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.

Web sources

Citizen's Guide to US Federal Law on 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.

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

Print sources

Mass. Practice: 

Contact

Phone

Within Massachusetts only

Within Massachusetts only

Online

Reference librarians online Chat with a law librarian 
Reference librarians via email masslawlib@gmail.com

Address

Administrative office (no law library at this location)
2 Center Plaza
9th Floor
Boston, MA 02108
Last updated: July 12, 2018

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