Federal court finds that effort to stem child porn would have overly broad impact
A senior U.S. district judge ruled on September 10 that Pennsylvania’s attempt to block any of its residents from accessing child pornography on the Internet is unconstitutional, because it has had the incidental effect of blocking access to thousands of “innocent” Web sites worldwide.
In a complicated opinion that delves into the inner workings of the Internet, Judge Jan Dubois found that the available technologies available to Internet Service Providers (ISPs) such as America OnLine and other popular providers to block access by their subscribers to particular Web sites are not capable of the kind of fine-tuning that would avoid blocking other Web sites nor are they reliably able to block access according to the users’ location.
Child pornography is not protected by the First Amendment, but attempts to bar access to it that have the incidental effect of blocking access to constitutionally protected speech run afoul of established constitutional doctrine.
Dubois also found that the Pennsylvania statute could lead to prior restraints of speech, which are also disfavored under the First Amendment. Law enforcement agents cannot unilaterally make determinations as to what content is obscene or unprotected as child pornography; instead that finding can only be made by a neutral decision-maker, such as a judicial magistrate or a court.
The issue is particularly complicated with online porn because the Supreme Court has ruled that “virtual child pornography”—that is, simulated child porn that does not use real children as photographic subjects—is protected by the First Amendment, since the constitutionally acceptable purpose for banning child pornography is to stem the sexual exploitation of children. No real children are sexually exploited in the manufacture and promotion of virtual child pornography. But it is difficult to tell the two kinds of depictions apart, requiring particular expertise, so Dubois found a particular danger that the procedures established under the law would end up blocking the access of millions of viewers to constitutionally protected material.
Pennsylvania is likely to appeal this ruling. The plaintiffs included the Center for Democracy and Technology, the American Civil Liberties Union, and an ISP called Plantagenet, Inc.