Yesterday the Massachusetts Supreme Judicial Court reversed Matt Zubiel’s conviction of attempting to disseminate matter harmful to a minor, ruling that M.G.L. c. 272, § 31’s definition of matter “does not encompass electronically transmitted text, or ‘online conversations.'” Zubiel, age 25, engaged in instant messaging with “Melissa QT1995,” who he believed to be a 13-year old girl but was actually the online persona of police officer Melissa Marino. Zubiel and Melissa engaged in four separate online conversations in which Zubiel asked Melissa about her sexual experience, “told her that we would to visit and that he ‘would teach [her] everything,'” and arranged to meet Melissa at her apartment. During one of these chats Zubiel asked if Melissa was a police officer; he repeated this question during a telephone call shortly before their scheduled meeting. [More than once a student has asked whether undercover police can lie in response to this question. I’m not sure what they envision–“am I a police officer? Wow, good guess! Well, you sure ended my investigation. Next time remind me to chase a criminal who’s less astute!”) Police arrested Zubiel as he walked toward Melissa’s apartment building. He admitted “‘it was a possibility that he would have sex with this girl if–if, indeed, she was a real girl . . .”
Zubiel was charged with violating M.G.L. c. 272, §28: “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 . . . ” M.G.L. c. 272 §31 defines matter 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.” The Commonwealth made two arguments: that computer text is a visual representation, or that computer text is handwritten or printed material.
Citing the principle that “[p]enal statutes must ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited” the SJC rejected both arguments:
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. Undeveloped photographs, pictures, motion picture films, videotapes and similar visual representations or reproductions may be visual materials notwithstanding that processing, development or similar acts that may be required to make the contents thereof apparent.”] 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 . . . 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.
[ . . . ]
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 . . . 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” (emphasis added).
The remaining issue is whether the instant messages in this case are “printed material” under § 31. . . 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” (emphasis added). 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.
The SJC closed by noting that “while proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in §31 do not do so. 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.”