A federal district judge struck down a Pennsylvania state statute, the Internet Child Pornography Act, 18 Pa Cons. Stat. §§7621-7630, which would impose criminal liability on an ISP which "merely provides access to child pornography through its network and has no direct relationship with the source of the content." Center for Democracy and Tech. v. Pappert. The court finds the Pennsylvania statute unconstitutional under both the First Amendment and the Dormant Commerce Clause:
Based on the evidence presented by the parties at trial, the Court concludes that, with the current state of technology, the Act cannot be implemented without excessive blocking of innocent speech in violation of the First Amendment. In addition, the procedures provided by the Act are insufficient to justify the prior restraint of material protected by the First Amendment and, given the current design of the Internet, the Act is unconstitutional under the dormant Commerce Clause because of its affect on interstate commerce.
The elimination of child pornography is an important goal and those responsible for the creation or distribution of child pornography should be prosecuted to the full extent of the law. To that end, all of the ISPs involved in the case have given defendant their complete cooperation. Notwithstanding this effort, there is little evidence that the Act has reduced the production of child pornography or the child sexual abuse associated with its creation. On the other hand, there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment. For these reasons, and the other reasons set forth in the Memorandum, the Court is ineluctably led to conclude the Act is unconstitutional.
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