Question 1.

The Commonwealth of Massachusetts is considering passing a law to control the availability of obscene materials on the Internet to its residents.The proposed law, S. 1117, would provide:

Section 1.Preventing Access to Obscene Matter.An Internet service provider shall prevent the access of persons residing within this commonwealth to obscene matter available on or accessible through its service.

(a)Compliance through Technical Measures. An Internet service provider that implements appropriate technical measures that block or filter access to obscene matter shall be deemed to comply with this statute.

(b)Order to Remove or Disable Access to Items. If the Attorney General of this Commonwealth finds that obscene matter is available or is accessible through the service of an Internet service provider in a manner accessible to persons within this Commonwealth, the Attorney General shall apply to the court of the county wherein the items have been discovered for an order directing the Internet service provider to remove or disable access to the obscene matter. Such application shall identify the Uniform Resource Locator or other address from which such matter is accessible.Upon an ex parte determination that the material constitutes obscene matter within the meaning of section 2(b), the court shall direct the Internet service provider to remove or disable access to the material.An Internet service provider's compliance with such an order shall be deemed to be in compliance with this statute with respect to the material covered by the order.An application for an order to remove or disable access to obscene matter, and the further application necessary to ensure compliance with that order, shall constitute the sole means of enforcing this statute.

Section 2.Definitions.

(a)The term "Internet service provider" means an entity that provides a service that enables users to access content, information, electronic mail, or other services offered over the internet.

(b)"Obscene matter" is matter that:

(i)The average person, applying contemporary community standards of this Commonwealth, would find, taken as a whole, is designed to appeal to, or is designed to pander to, the prurient interest;

(ii)Depicts or describes, in a patently offensive manner, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or lewd exhibition of the genitals, or post-pubescent female breast; and

(iii)Taken as a whole, lacks serious literary, artistic, political, or scientific value.

An "appropriate technical measure" is a specific technology that blocks or filters access to obscene matter.

You serve as a legislative aide to a Massachusetts state senator.The senator has heard that several groups, including providers of Internet content and Internet users from Massachusetts, are prepared to file an immediate challenge in federal court to the constitutionality of S. 1117 if it is enacted.The senator considers you an expert on Internet issues, and has asked you to:

Write a memorandum discussing the federal constitutional claims that are likely to be raised in such litigation and analyze how a court might resolve them.

For purposes of your analysis, you may assume that there are two open factual questions that the state legislature is wrestling with: (1) whether an Internet service provider that filters out or disables access to certain sites can preserve access to those sites for subscribers residing outside of Massachusetts; and (2) whether any of the "technical measures" that an Internet service provider could implement to block obscene matter will lead to overblocking or underblocking.To be very clear, the senator does not expect or want you to attempt to resolve these factual issues.Rather, he would like you to discuss how different possible resolutions of these factual issues would be relevant to a court's analysis of constitutional issues.

Because the senator is only interested in the substantive merits of the S. 1117, he asks you to assume for purposes of your analysis that any constitutional claims are raised by parties with standing and that the case would otherwise be justifiable.In addition, because he relies on other aides for analysis of non-Internet issues, he asks you to confine your analysis of S. 1117 to matters pertinent to your CyberLaw class.