So holds the Massachusetts Supreme Judicial Court in Commonwealth v. Zubiel. The case involved a sting aimed at catching pedophiles. Zubiel approached a supposed 13-year-old online (actually an adult deputy sheriff), and engaged in sexually themed conversations with her. This was apparently likely a prelude to his trying to have sex with her, but he wasn’t prosecuted for attempted sex with a minor (perhaps because it wasn’t clear that his actions had gotten close enough to count as attempt). Instead, he was prosecuted for “attempt[ing] to disseminate matter harmful to a minor,” based on the sexual discussions. Note that the law of attempt, in Massachusetts and other states, allows for punishment even when the crime was factually impossible, as when someone tries to kill with a gun that he thinks is loaded but proves to be unloaded, or when someone tries to have sex with or send sexually themed matter to someone who he thinks is a minor but proves not to be a minor.
Here’s the heart of the court’s decision:
General Laws c. 272, § 28, provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished ....” “Matter” is defined in G. L. c. 272, § 31, for purposes of G. L. c. 272, §§ 28-30D,(3) as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” ...Penal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Therefore, criminal statutes are strictly construed against the government....
There are four broad categories of “[m]atter:” (1) any handwritten or printed material; (2) any visual representation; (3) any live performance; and (4) any sound recording....
[Visual representation:] General Laws c. 272, § 31, does not define “visual representation.” However, it does define “[v]isual material,” listing numerous specific media that are considered “visual material” under the statute [– ” any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer”]. When elements are listed in a series, the rules of statutory construction require the general phrase to be construed as restricted to elements similar to the specific elements listed. This principle, ejusdem generis, “allow[s] the specific words to identify the class and [restricts] the meaning of general words to things within the class.”
Here, the specific elements listed as “[v]isual material” are limited to the class of pictures — moving or still, whether on paper, film, or computer. The statute indicates nowhere an intent by the Legislature to include words, such as those used in online conversations, in this definition.
In addition, the use of the phrase “visual representations” in the definition of “[v]isual material” provides insight into the definition of “visual representation.” The definition of “[v]isual material” includes “pictures, photographs or similar visual representations.” The inclusion of “similar visual representations” following the words “pictures” and “photographs” indicates that it refers to images, not purely written words.
Because the statute provides no definition of “visual representation,” this court must interpret the words of the statute according to their usual and accepted meaning. No Massachusetts court has defined “visual representation” to include pure text, such as the online conversations in this case. The ordinary meaning of “visual representation” does not include purely textual material. Accordingly, we hold that the Legislature did not intend online conversation to be considered as “visual representation” under § 31....
[Handwritten material:] The online conversations in this case were not handwritten. While there is no statutory definition of “handwritten” materials, in the absence of such definition, “we give [the words] their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.”
The relevant definition of the word “write” is “to form or trace (a character or series of characters) on paper or other suitable material with a pen or pencil.” ... [H]andwriting is what it is commonly understood to be: writing performed by hand with a pen or pencil, as distinguished from print, which is “mechanically produced.” ... [T]he online conversations in this case, as they were not written with pen or pencil, cannot be considered “handwritten” materials under § 31.
[Printed material:] [B]ecause there is no definition of “printed materials” in § 31, we look to the usual and accepted meaning of the words, from sources presumably known to the Legislature at the time the statute was enacted. Webster’s Third New Int’l Dictionary defines the verb “print” as “to make a copy of by impressing paper against an inked printing surface or by an analogous method.” Here, Zubiel electronically transmitted text, which did not involve the impression of paper against an inked printing surface, and did not cause any mechanically produced text to be printed on paper. Because criminal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited,” and any ambiguity in such statutes must be strictly construed against the government, we cannot hold that electronically transmitted text falls within the definition of “printed material.” ...
If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.
The statutory interpretation decision sounds right to me, though I do think the legislature should broaden the statute to include electronically transmitted text.
public_defender says:
Hear that sound? It’s the sound of Massachusetts legislators jumping over each other to be the first to introduce a bill to “fix” this “problem.” public_defender(Quote)
Northern Dave says:
Odd....the combination of the visual representation and every way the previous generation used to transmit text would, IMHO, be exactly the kind of thing an average citizen would correlate to the would be child abuser’s texting...........especially given the power of the “not limited to” clause..... Northern Dave(Quote)
Chris Travers says:
Seems about right. Chris Travers(Quote)
Jay says:
I’m intrigued by the idea of a “pornographic record.”
FYI, the better written federal version of this crime is 18 USC 1470. Jay(Quote)
Anon21 says:
That clause has no power in this instance. What it imports is that the general categories enumerated are not limited to the specific examples given (books, magazines, motion picture films, etc.). But it has no effect on, and grammatically cannot possibly affect, the base statutory definition of “matter,” which is limited to “any handwritten or printed material, visual representation, live performance or sound recording.” Thus, the court’s only job is to determine whether the chat sessions at issue could conceivably fall into one of those categories, and it concludes they cannot. Anon21(Quote)
Daniel Chapman says:
I assume the police tried to set up a meeting between this guy and the “child,” but he didn’t go for it. I find it a little distasteful for the police to take part in a conversation and then prosecute someone for being the other side of the conversation.
I also take it that if this entire conversation had taken place in person rather than over the internet, no crime would have been committed? Hard to say without knowing what was said, of course, but I’m guessing he didn’t reach the level of “child enticement” or they would have charged him with that. Daniel Chapman(Quote)
JohnF says:
What a great idea! A court’s decision to the effect that a statute must be amended before it can do what might seem to have been logically intended, but was not expressed, in the statute itself!
Why, this kind of thinking might turn the judiciary on its head. JohnF(Quote)
Eric Rasmusen says:
The decision sounds crazy to me. As one commentor noted, any ordinary person would think that if writing a letter to someone is covered by the statute, so is sending them an email. As others noted, that is almost certainly legislative intent and the will of the voters. I’m sure the criminal is vastly relieved, and laughing at the Court.
I did a quick search on the decision and found no mention of typewritten material. I wonder if courts have ruled on whether sending a dirty letter written on a typewriter is legal. Presumably the current Court would say Yes, even if the same thing were handwritten (in printing or in cursive) or typeset, because typewriting is not printing.
I wonder, too, if the Court is going to be consistent and apply this idea to documents generally. For purposes of legal proof, are electronically transmitted documents— including faxes with signatures— going to not count? I know this is not quite the same question as construing a criminal statute, but it’s not unrelated either. And with a lot of property and contract rules, there’s the same idea of strict construction. Eric Rasmusen(Quote)
PeteP says:
Another fine triumph of ‘The Law’ over all reason and justice and equity. PeteP(Quote)
Eric Rasmusen says:
Looking again, I see that the court is choosing its dictionary to get a printing definition that would indeed include typewriters but not computer keyboards. I don’t know a good on-line dictionary comparison site, but the first couple I checked would exclude typewriters and include only printing presses.
Another problem with the court’s rationale is that it’s a classic example of ignoring technological change. This court would say you might not be able to shout fire in a crowded theatre, but whether you can say it quietly into an earthshattering megaphone or amplifier is a novel question. Freedom of the press, of course, would only apply to printing presses. And the Constitution would clearly not authorize an air force. Eric Rasmusen(Quote)
Syd Henderson says:
Jay says:
I’m intrigued by the idea of a “pornographic record.”
The problem is finding a pornograph to play it on. Syd Henderson(Quote)
Daniel Chapman says:
Does anyone else think that this statute was intended to prevent people from giving pornography to minors, not to prevent people from having arguably dirty conversations with minors? Daniel Chapman(Quote)
Cloudesley Shovell says:
Daniel Chapman–I agree with you. One cheer for the rule of lenity, not quite completely dead.
I also agree with those who predict it won’t take long for the legislature to amend the statute. Cloudesley Shovell(Quote)
eyesay says:
Could Zubiel be prosecuted for attempted statutory rape? eyesay(Quote)
Chris Travers says:
Typing could be seen as an analogous process to printing, because it involves pressing an inked surface against paper, and so is quite analogous to pressing a paper against an inked surface.
Laser printers are more interesting. I would argue that they too are analogous. In a laser printer, powdered ink is electrostatically transferred to a piece of paper and then melted into it by an assembly called a fuser (usually consisting of a heating element and some rollers). Pressure and ink are both involved.
The only kind of printing technology that gives me pause under the definition are ink jet printers (which work by boiling ink in small tubes which then squirt small droplets onto the paper). I suppose this is analogous but it is certainly more removed than a typewriter, a dot matrix printer, or a laser printer. Chris Travers(Quote)
David Chesler says:
Folks on the Boston Globe site were going nuts over this (how could the same court that found a right to gay marriage allow this?) I’d think handwritten has been well defined over holographic wills.
Going to another jurisdiction, observant Orthodox Jews generally do not write the name of the diety. Generally they also don’t email it, partly out of habit, but officially because someone might print the email and then we’d have the letters on the piece of paper, which must be treated specially. (There’s argument whether English letters matter at all, but I’ve never heard that patterns of phosphors or LCDs are subject to the same restrictions as patterns of ink.)
Agreed Daniel Chapman, it’s a stretch to say that “Come over to my house” is per se harmful to minors no matter the medium.
There is another protection-of-children statute in Mass for enticement. I have an n-th degree connection with the defendant in a leading case on that statute, which on appeal found there had to be willful intention, not strict liability (unlike statutory rape). That did apply in that case (the Commonwealth didn’t prove that the defendant knew he was enticing a 12-year-old into his car, he thought the girl was older) but not in a companion case, nor this one, where the court held that the impossibility was not a defense (he thought the cop was a minor.) David Chesler(Quote)
Chris Travers says:
An odd question about the Massachusetts law.
It defines material harmful to minors thus:
It strikes me that, according to this definition, Playboy Magazine doesn’t qualify, if the statute is interpreted to avoid surplussage. Indeed all adult-targetted porn would not seem to qualify, unless otherwise fitting the definition of obscenity. Is this right? Or is there some act of legal gymnastics that avoids that problem?
Badly written laws........ Chris Travers(Quote)
Chris Travers says:
Speaking of badly drafted laws in this area.... The Washington State Legislature considered last year (and did not pass) a law which purported to:
1) Greatly restrict distributing “harmful to minors” to minors.
2) Repeal the safe harbors for libraries and the like.
Fortunately it didn’t pass. However, as I was looking at it, I noticed the following bit from the definitions that made me think of the recent discussion on electing corporations to office and age requirements (emphasis added):
I suppose new corporations could not deal in material harmful to minors under such a law, had it passed.... Chris Travers(Quote)
philip snyder says:
From my point of view the courtand the law errs on the cause of safety. What, if in the event, a mavlolent individual hacks another individual’s computer and sends sexual illicit mail to a minor or an officer posing as a minor? How can the receiver of the e-mail be sure the e-mail came from the e-mail address of the addressor or someone who hacked their computer. Handwriting and a typewriter can “signature” identified. philip snyder(Quote)
zuch says:
Considering it was an adult police officer he was texting, I think you’re quite right. ;-)
Cheers, zuch(Quote)
Bama 1L says:
That’s what I saw in the statute, too. It’s what you would charge a newsstand employee who sold a Playboy to a twelve-year-old with.
Surely Playboy appeals to the prurient interest of minors! (I don’t think “so as to” is limiting, if that is the issue.) Indeed, it’s even more likely to fall under this statute than a corresponding adult one, since it contains nothing of literary interest to minors.
The harder case would be some sort of fetish magazine that minors wouldn’t find sexy. Bama 1L(Quote)
Chris Travers says:
Do you think “predominantly” is surplussage? Chris Travers(Quote)
“Electronically Transmitted Text” Isn’t “Visual Representation” or “Handwritten or Printed Material” | Liberal Whoppers says:
Swan Trumpet says:
Here’s a thought: Parents have the responsibility to ensure the safety of their children by using the parental control software that prevents use of chatrooms, certain websites, and even restricts IM. They also have the responsibility to make sure that when their 13 year-old leaves the house, they know where he is going and who he’ll be with — yes, even if this means checking up on the teen. Most cell phone providers offer GPS tracking making the job especially easy.
Police should be doing real work, like patrolling the streets. Cops should not be paid to get their jollies spending time on the internet impersonating minors and creatively entrapping them. Swan Trumpet(Quote)
Chris Travers says:
But the issue here is statutory rather than Constitutional in scope. The question is not if the legislature can ban electronically transmitted text, but whether they did so. Given that there is a fairly easy route for this to get fixed (new bill, signed into law or veto overridden) via democratic institutions, shouldn’t it be up to the legislature to decide what the exact contours of the law are, rather than the court to expand a law beyond what the text states that it covers?
If we go that direction (where individuals are held to the spirit rather than the letter of the law), doesn’t it lead to due notice issues and an erosion of 5th amendment due process rights?
The issue of an air force in the Constitution is different. One could argue that, in principle, that an air force is not Constitutionally different from a navy, so the elected bodies are free to fund one. Chris Travers(Quote)
Ben says:
Nope, not in MA. The Massachusetts law on attempt, as Eugene correctly guesses above, is very strict when it comes to the “substantial step” part. There was a case recently where the defendant had solicited sex with a minor (through an officer posing to be the minor’s parent), and then drove to a house, purported to be the minor’s house. That was enough for solicitation, the Supreme Judicial Court said, but not enough for attempted statutory rape. Ben(Quote)
Guy says:
Since the language is taken from scotus’ definition of obscenity, I think “predominantly” was clearly intended to mean as opposed to the non-prurient interests of minors, not as opposed to the prurient interests of adults. But yeah, that wouldn’t be the natural reading for a layman to give it. Guy(Quote)
Chris Travers says:
But then “of minors” in the first prong becomes surplussage, or am I missing something? Chris Travers(Quote)
Guy says:
I think the idea is that it’s easier to satisfy the standard if you reference everything to minors, so presumably something that doesn’t qualify as obscene for an adult could still be “harmful to minors”. Apparently it’s easier to appeal primarily to the prurient interest of a minor than an adult. Guy(Quote)
Northern Dave says:
I appreciate the point 21, but my thinking was more along the line of the acceptable extension of the given examples — think of the frequency of the use in current culture of “on-line books”, “on-line magazines”, etc.
Further, I would read it that the inclusion of “visual representation” following “handwritten or printed material” would indicate a facsimile of said and e-mails would qualify as a visual simulation of printing.
As some of the others have said it seems the justices saw this more as a law preventing delivery of suspect materials to underage receivers rather than an anti-luring law. Northern Dave(Quote)
Mario says:
I think this was probably the right result. While I would consider email and text messages “printed material,” I wouldn’t say the same for instant messages and chat rooms, which to me are more akin to speech than material. In the same vein, in the event of a law against obscene gestures, I wouldn’t consider ASL “gestures.” Mario(Quote)
Chris Travers says:
Material that is obscene to adults passes the test through a separate test (“is obscene, or if taken as a whole...”). Chris Travers(Quote)
Eric Rasmusen says:
If the judges want to say the defendant should get off because the emails do not contain the kind of text prohibited by the law, they should say that. Their holding seems to be that the kind of text is unimportant in this case. Even if the text were the most disgusting pornography possible, sending it to a minor would not be criminal because it was on an email, not from a printing press. If, on the other hand, the defendant had printed out the email and sent it in a letter to a minor, that would be a grave crime (unless he used an inkjet printer instead of a laser printer, in which case, as a commentor notes, it would be perfectly legal).
Am I wrong in saying that is the holding? Eric Rasmusen(Quote)
Eugene Volokh says:
Eric Rasmusen: Yes, this particular statute only criminalizes the distribution of “handwritten or printed material, visual representation, live performance or sound recording.” Eugene Volokh(Quote)
Sammy Finkelman says:
Two things: This law did not apply to telephone conversations, or what was said in telephone conversations. So this section of the law was not really meant to apply to one on one contact. I could also point out that typed or mimeographed material is exempt.
Second, this section of the law seems to be aimed at prepared materiel that was not prepared with any particular person in mind.
What could throw you off from this conclusion is that it includes “handwritten” material. You probably have to go back to the time when this law was first written to get an explanation of what exactly they had in mind. There might have been something going on at the time.
It is hard to believe that they wanted to include handwritten love letters but not ones that were typed. So they must have been thinking of something else that goes with pre-printed material offered for sale by third parties. Sammy Finkelman(Quote)
Andrew says:
When was this statute enacted? Printing now has a much broader meaning than it did before the advent of computers. You can “print” something to PDF as a means of changing file type without even creating a physical copy.
I can see where the court is coming from on this, but it seems to be a stretch. Where new technology is analogous to old technology, the legislature should not be required to enact a new statute to cover the new technology. New statutes should only be required where the new technology differs substantially from the old technology such that the average person would be confused by the wording.
I don’t know any reasonable person who didn’t think that “handwritten or printed materials” included emails. Andrew(Quote)
Chris Travers says:
Technically speaking, PDF’s are typeset documents, not printed documents. (Another test: If it can’t possibly have literal errors,* it isn’t printed.)
* literal errors are errors caused by mechanical malfunction of a printing press.
Think of it this way:
Raw text -> Typeset material -> Printed material
This works very analogously to printing presses:
Early printing presses:
Raw document/manuscript -> metal type set in printing frame -> Printed page
Linotype:
Raw document/manuscript -> Rubber printing plate -> printed page
Laser etching:
(Raw manuscript -> Electronic representation) -> (virtual typeset representation, such as Postscript -> etched plate) -> printed page.
“printing” to PDF only gets you to the typeset portion.
Raw electronic document (Word/OpenOffice/Text) -> PDF -> (via actual printer) printed page.
Just because your computer calls it “printing” doesn’t mean it is ;-). It just means it is using common software routines and a common user interface.
If you print a LaTeX document on a UNIX system to a laser printer, it goes roughly like:
LaTeX document (-> DVI -> Postscript or PCL -> laser-representation on photo-electric drum) -> printed page.
Similarly you could:
LaTeX document (-> PDF -> Postscript or PCL -> laser-representation on photo-electric drum) -> printed page.
PDF is at best half-way through the process. It would be like considering a Linotype-generated rubber printing plate to be printed material. Chris Travers(Quote)
Eric Rasmusen says:
Right. Electronic printing to PDF’s wouldn’t count as printing, the MAss SC says, for the same reason that mechanical printing to an inkjet wouldn’t count– you don’t have something hard pressing ink onto paper. But of course the reason the computer software calls it “printing” is because the Mass SC definition is not what the word really means in English, whatever the particular dictionary they chose says (and it would be worth seeing what *other* definitions for the same word that same dictionary gives. Eric Rasmusen(Quote)
Chairm says:
The Court’s reasoning begins with the statute’s text and its plain meaning. The Court decided that the statute was not ambiguous. So it adhered to the statute’s plain meaning.
Is that pretty much the thought process here?
Where a statute’s plain meaning is not ambiguous, there is no room for the Court to extend that meaning even if through the use of close analogues. Right?
So the Court decided on the unambiguous meaning of the statute and explicitly defers to the legislative branch because extending the meaning, unambiguously, is beyond the powers of the judiciary. Right? Chairm(Quote)
q says:
printf("The court cherry-picked its dictionary definition.");q(Quote)Chris Travers says:
You could argue that the ink jet MIGHT be an analogous process to a printing press. Creating a PDF is not the same thing. Typesetting is not the same thing as printing; they are different phases in the process. Certainly if you suggest a dot matrix receipt printer generates printed material, it would be absurd to suggest an inkjet printer would not.
Is a PDF only printed material if it was generated when you hit the “print” button in your word processor? If I run pdflatex on my book file to generate the typeset pdf’s, is that somehow not printed material?
Now, even if you push “printed” material back to “typeset” material, then the word document you originally “printed” to PDF doesn’t qualify as printed material, right? Chris Travers(Quote)
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