Eric Rasmusen: 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 somethinghard pressing ink onto paper. But of course the reason the computer software calls it “printing” is becausethe 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.

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?

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?

Andrew: You can “print” something to PDF as a means of changing file type without even creating a physical copy.

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.

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.

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.

Am I wrong in saying that is the holding?

Guy: 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.

Material that is obscene to adults passes the test through a separate test (“is obscene, or if taken as a whole…”).

Anon21: 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.

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.

Chris Travers:
But then “of minors” in the first prong becomes surplussage, or am I missing something?

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:
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.

But then “of minors” in the first prong becomes surplussage, or am I missing something?

Chris Travers:
Do you think “predominantly” is surplussage?

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.

eyesay: Could Zubiel be prosecuted for attempted statutory rape?

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.

Eric Rasmusen: 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.

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.

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.

Bama 1L: 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.

Do you think “predominantly” is surplussage?

Daniel Chapman: 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?

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.

Chris Travers: It strikes me that, according to this definition, Playboy Magazine doesn’t qualify, if the statute is interpreted to avoid surplussage.

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.

Daniel Chapman: 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?

Considering it was an adult police officer he was texting, I think you’re quite right. ;-)

Cheers,

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):

(8) “Minor” means any person under the age of eighteen years.
(9) “Person” means any individual, partnership, firm, association,
corporation, or other legal entity.

I suppose new corporations could not deal in material harmful to minors under such a law, had it passed….

It defines material harmful to minors thus:

“Harmful to minors”, matter is harmful to minors if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors.

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……..

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.)

Eric Rasmusen: 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.

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.

I also agree with those who predict it won’t take long for the legislature to amend the statute.

I’m intrigued by the idea of a “pornographic record.”

The problem is finding a pornograph to play it on.

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.

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.