Obscenity and pornography
- See also: Law about obscenity and pornography
Miller v. California, 413 US 15 (1973)
Establishes a three-prong standard: (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.
Com. v. Graziano, 96 Mass. App. Ct. 601 (2019)
A child is "unclothed" under MGL c.279, § 29C when she is wearing a top sheer enough to expose her breasts to view.
Com. v. Feliz, 486 Mass. 510 (2020)
Given the defendant's use of devices to share child pornography over the Internet, a condition of probation allowing the probation department to inspect and search any electronic device was reasonably related to the Commonwealth's probationary goals. This condition only allows searches of the defendant's electronic devices for child pornography, not his home or person, and not for other subjects.
Com. 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."
Com. 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."
Com. 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."
Com. v. Mienkowski, 91 Mass. App. Ct. 668 (2017)
Evidence was sufficient to convict defendant of dissemination of matter harmful to minors because the video he sent to a 14-year-old girl depicted nudity and sexual conduct, and jurors could find it appealed predominantly to prurient interest of minors and was contrary to prevailing standards.
Com. 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.
Com. v. Wassilie, 482 Mass. 562 (2019)
Discussion of the history of MGL c.272, § 105 (b), including its amendment to address the surreptitious photographing or videotaping of a person's clothed private anatomy even when that person is in public.
- See also: Law about paternity (parentage)
Partanen v. Gallagher, 475 Mass. 632 (2016)
A woman may use the paternity statute, chapter 209C, to establish her own parentage of a child without a biological relationship to that child. MGL c. 209C should be read in gender-neutral terms. Chapter 209C, § 1 requires "an allegation that the children were 'born to [two people] who are not married to each other.'" Chapter 209C, § 6 (a)(4) requires an allegation that the presumed parent, "jointly with the mother, received the child into their home and openly held out the child as their child." In this case, the plaintiff "asserts that the children were born both to her and to Gallagher, because Gallagher's pregnancies and the children's births took place with Partanen's 'full acknowledgment, participation, and consent.' She asserts also, with respect to the "holding out" provision, that she and Gallagher jointly received the children into their home and openly held out the children as theirs." This is sufficient to bring an action for parentage, and the case should not have been dismissed.
Adoption of a Minor, 471 Mass 373 (2015)
Lawful parentage, and its associated rights and responsibilities, are conferred by statute on the consenting spouse of a married couple whose child is conceived by one woman of the marriage, through the use of assisted reproductive technology consented to by both women. (Chapter 46 sec 4B)
Cosgrove v. Hughes, 78 Mass. App. Ct. 739 (2011)
"If a decedent has acknowledged paternity of a person born out of wedlock . . . that person is heir of his father." The child does not have to prove a biological connection.
Custody of Zia, 50 Mass. App. Ct. 237 (2000)
Father was entitled to sole legal and physical custody of child born out of wedlock where mother was "deficient and obstructive."
Department of Revenue v. Roe, 29 Mass. App. Ct. 967 (1990)
This case authorizes orders for current and back child support and the provision for health insurance.
Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380 (2004)
A mother could bring a paternity action for child support against a putative father [alleged biological father whose paternity is not legally established] even though she was married to another man at the time of the child's birth and her husband was listed as the child's father on the birth certificate.
D.H. v. R.R., 461 Mass. 756 (2012)
Outlines the history and procedure for a putative father to of a child born to a married woman to bring a paternity action. In this case, the putative father did not know the mother was married when the child was born, and the husband had not "executed an affidavit denying his paternity during the mother's lifetime, and thus the voluntary acknowledgement of parentage [by the putative father] was not effective as a matter of law and lacked the force or effect of a judgment of paternity."
G.E.B. v. S.R.W, 422 Mass. 158 (1996)
A child was not bound by a prior settlement agreement of her mother and father where she was not a party and the mother was not the legal representative of the child. The court therefore affirmed a paternity order brought by the child against the father.
Hunter v. Porter, 57 Mass. App. Ct. 233 (2003)
An illegitimate child sought to establish her legal right to inherit from her alleged father’s estate but did so 20 months after the alleged father’s death. Case was dismissed as untimely due to MGL c. 190 § 7 (repealed by 2008 Mass. Ch. 521) and MGL c. 197 § 9 (repealed by 2008 Mass. Ch. 521).
Lowell v. Kowalski, 380 Mass. 663 (1980)
When paternity is conceded, there is no justification for denying the right of a child to inherit from his or her natural father.
O'Connell v. Greenwood, 59 Mass. App. Ct. 147 (2003)
Absent clear provisions in the paternity judgment to the contrary, mother who shared legal custody of a child born out of wedlock is not prohibited from (1) enrolling child in school using last name of mother's husband; (2) insisting that child call mother's husband "daddy;" nor (3) instructing child's school not to release child to father.
Paternity of Cheryl, 434 Mass. 23 (2001)
More than 5 years after he had voluntarily acknowledged paternity, a man underwent DNA tests which determined that he was not the child's father. He then brought this action to vacate the paternity judgment. The court held that he was still liable to support the child because of the "compelling public interest in the finality of paternity judgments," the clear intent of MGL c.209C, § 11 to limit the ability of a man who voluntarily acknowledges paternity to then challenge it, and the best interests of the child.
- See also: Law about police conduct
United States Supreme Court cases
Vega v. Tekoh, 597 U.S. ___ (2022)
US Supreme Court decided that a person cannot sue a police officer under federal civil rights laws for violating their Fifth Amendment right against self-incrimination by failing to provide a Miranda warning, saying “because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under [42 U.S.C.] §1983.” See also Vega v. Tekoh Summary provided by the ACLU.
Lange v. California, 594 U.S. ___ (2021)
US Supreme Court held that “the flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.”
Torres v. Madrid, 592 U.S. ___ (2021)
US Supreme Court held that the use of physical force with the intent to restrain a person, even if that fails to restrain the person, is considered a seizure. This expands the situations in which a plaintiff can sue for excessive force under the Fourth Amendment.
Collins v. Virginia, 592 U.S. ___ (2018)
US Supreme Court held that a warrant is needed to search a car parked in a driveway at a private home. The "automobile exception" does not give an officer the right to enter a home or its curtilage to access a vehicle without a warrant.
Miranda v. Arizona, 384 US 436 (1966)
Required warnings. "In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed." See also, Miranda v. Arizona Explanation from National Paralegal College.
Massachusetts and federal cases
Selected case law: citizen's arrest
Com. v. Claiborne, 423 Mass. 275 (1996)
Clarified and “relaxed” citizen's arrest standard regarding warrantless arrest by police outside their jurisdiction.
Com. v. Harris, 11 Mass. App. Ct. 165, rev. denied 383 Mass. 890 (1981).
Highlights the elements that allow for a citizen’s arrest, and the liabilities of a citizen that makes an arrest in error.
Com. v. Lussier, 333 Mass. 83 (1955)
Citizen's arrest standard.
Selected case law: police procedure
Com. v. Barreto, 483 Mass. 716 (2019)
"The mere fact that an officer observes a driver's 'nervousness and fidgeting' without more, does not warrant a belief that the safety of the officers or others is threatened."
Com. v. Buckley, 478 Mass. 861 (2018)
Police may stop a vehicle for an observed traffic violation, even if it is actually a pretext to investigate other crimes.
Com. v. Carrasquillo, 489 Mass. 107 (2022)
"No bright-line test applies in determining whether a defendant has a reasonable expectation of privacy in content posted to a social media account having a designated “private” setting; each case must be resolved by carefully considering the totality of circumstances"
Com. v. Clarke, 461 Mass. 336 (2012)
Defendant invoked right to remain silent by shaking head “no” in response to a question whether he wanted to speak.
Com. v. Comenzo, 489 Mass. 155 (2022)
Addresses when Police long-term pole camera surveillance constitutes a search and if there was probably cause for the search. See also Com. v. Mora, 485 Mass. 360 (2020).
Com. v. DeJesus, 489 Mass. 292 (2022)
Standing requirement of Art. 14 of the Mass Constitution abolished. The traditional Massachusetts two-step standing analysis has been abolished in favor of the Supreme Court's single-step expectation of privacy test. See Rakas v. Illinois, 439 U.S. 128 (1978).
Com. v. German, 483 Mass. 553 (2019)
Police must provide an instruction to witnesses before a showup identification.
Com. v. Gautreaux, 458 Mass. 741 (2011)
Foreign national has right to consular assistance.
Com. v. Long, 485 Mass. 711 (2020)
Lowers the burden for proving that a police stop was racially motivated.
Com. v. Matta, 483 Mass. 357 (2019)
"[R]ather than attempting to determine whether a reasonable person would believe he or she was free to leave, in our view, the more pertinent question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay."
Com. v. Pearson, 486 Mass. 809 (2021)
Clarifies that the standard to apply when police apply for a warrant after an illegal entry (the independent source doctrine) has 2 separate prongs. "(1) the officers' decision to seek the search warrant was not prompted by what they observed during the initial illegal entry, and (2) the affidavit supporting the search warrant application contained sufficient information to establish probable cause, 'apart from' any observations made during the earlier illegal entry. "
Com. v. Rainey, 491 Mass. 632 (2023)
The SJC held that police body-worn camera video recording of a victim’s voluntary statement was not a wiretap violation and did not result in a violation of the defendant’s rights under the Fourth Amendment of the United States Constitution and art. 14 of the Massachusetts declaration or rights.
Com. v. Torres-Pagan, 484 Mass. 34 (2020)
Clarifies standard for patfrisks to ensure Massachusetts Constitution does not provide less protection than Federal Constitution. "[P]olice must have a reasonable suspicion, based on specific articulable facts."
Com. v. Vasquez, 482 Mass. 850 (2019)
Inadequate Spanish translation of Miranda warning led to suppression of defendant's statements.
Com. v. Warren, 475 Mass. 530 (2016)
“[T]he finding [of the 2014 Field Interrogation and Observation (FIO) study] that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor in the reasonable suspicion calculus." See also Com. v. Evelyn, 485 Mass. 691 (2020).
>Police conduct: recording police
A brief history of cases regarding the right to record police in Massachusetts:
Glik v. Cunniffe, 655 F.3d 78 (2011)
There is a constitutional right to videotape police carrying out their duties in public.
Gericke v. Begin, 753 F.3d 1 (2014)
"the threshold question here is whether the occasion of a traffic stop places Gericke's attempted filming outside the constitutionally protected right to film police that we discussed in Glik. It does not."
Project Veritas Action Fund v. Rollins, 982 F.3d. 813 (1st Cir., 2020)
People may not be criminally charged for recording police doing their work. For the history of this case see also Martin v. Evans, Project Veritas Action Fund v. Conley, Martin v. Gross I and Martin v. Gross II.
Potholes and road defects
Public and subsidized housing
Rape and sex crimes
Real estate brokers
Recreational hunting and fishing
- See also: Law about recreational marijuana
Commcan Inc v. town of Mansfield, 488 Mass. 291 (2021) and West Street Associates, LLC v. Mansfield Planning Board, 488 Mass. 319 (2021)
Both of these cases address that local town’s zoning laws that attempted to exclude marijuana businesses from operating. See also: Pot shop scores key zoning victories in Massachusetts high court.
Comm. v. Cruz, 459 Mass. 459 (2011)
Police can't order a person out of a car just because they smell burned marijuana.
Comm. v. Gerhardt, 477 Mass. 775 (2017)
Talks about the use of field sobriety tests, and includes new Model Jury Instruction Regarding Roadside Assessments for Use in Prosecutions for Operating Under the Influence of Marijuana.
Comm. v. K.W., 490 Mass. 619 (2022)
People previously arrested for cannabis crimes that have since been legalized are entitled to "a strong presumption in favor of expungement." This ruling eases the way to expunging old charges.
Comm. v. Keefner, 461 Mass. 507 (2012).
The law which "decriminalized possession of one ounce or less of marijuana, did not repeal the offense of possession with intent to distribute marijuana, ... where the amount of marijuana possessed is one ounce or less."
Comm. v. Long, 482 Mass. 804 (2019)
"The overwhelming odor of unburnt marijuana wafting from a large, windowless, cinder-block warehouse, ... in a place where marijuana cultivation was not allowed under State law; evidence of an apparent break-in; and two isolated vehicles parked in what police officers viewed as a suspicious manner after ordinary business hours ... was sufficient to support a finding of probable cause to search a warehouse for evidence of illegal marijuana cultivation."
Comm. v. Richardson, 479 Mass. 344 (2018)
Addresses the prosecution of a person for trafficking in marijuana where that person was legally permitted to grow marijuana for medical purposes. Includes new model jury instructions.
Comm. v. Rodriguez, 472 Mass. 767 (2015)
The smell of burned marijuana isn't enough for police to stop a vehicle.
Valley Green Grow, Inc. v. Charlton, 99 Mass. App. Ct. 670 (2021)
"The proposed cogeneration facility, incidental processing, and incidental manufacturing, when viewed as components of the entire indoor commercial horticultural use, were allowed as of right in the town's agricultural district, and there was no merit to the arguments that the principal use of the locus was light manufacturing rather than commercial horticulture."
Reverse mortgages: Home Equity Conversion Mortgages (HECM)
Roads and streets
Contact for Select Massachusetts and federal court cases for "law about" pages: O-R
|Last updated:||April 28, 2023|