COMMONWEALTH v. ZUBIEL, FEBRUARY 5, 2010, SJC
Obscenity; “Matter.”
The defendant argued that the definition of “matter” as defined in G. L. c. 272, § 31 does not include electronically transmitted text, i.e. online conversations, for the purposes of a prosecution under G. L. c. 272, § 28, attempt to disseminate matter harmful to a minor. The SJC agreed with the defendant, finding the defendant’s online conversations did not constitute an attempt to distribute harmful matter. The court considered the meaning of the word “matter,” which is defined under G. L. c. 272, § 31 as “any handwritten or printed material, visual representation, live performance or sound recording….”
First, the court rejected the argument that online conversations constituted “visual representations.” In doing so, the court considered the definition of “visual material” under G.L. c. 272, § 31 because “visual representations” itself was not defined. Relying on the ejusdem generis principle of statutory construction, the court found that because “visual material” was defined through a listing of various media that were all part of a class of pictures or images, the definition does not include material consisting purely of written words.
Second, the court rejected the argument that online conversations are “handwritten or printed material.” In rejecting both of these classifications, the court relied on the “usual and accepted” meanings of the words, for neither term was defined in the statute. Looking to Webster’s Third New International Dictionary, the court found the definition of “write” to be “to form or trace…on paper…with a pen or pencil” and the definition of “print” to be “to make a copy of by impressing paper against an inked printing surface or by analogous method.” The court found that the defendant’s online conversations did not fit either definition as commonly understood.
Guiding the court in its deliberations was the rule that ambiguity in penal statutes must be strictly construed against the government; the notion that offenses and definitions must be understood in such a way that the ordinary public knows what conduct is prohibited; and the belief that there was no clear legislative intent for such online conversations to be included under the statutory prohibition, and thus it is not the place for judicial action.
