State laws on Internet pornography have evolved rapidly. Prior to the rise in popularity of the Internet, most states already had laws on the books regulating age limits for purchasing pornography as well as statutes criminalizing child pornography. Many legislatures saw a need for legislation to respond to the vicissitudes of new technology. Between 1995 and 2002, nearly two dozen states considered bills that would control in some fashion access to Internet pornography. More than a dozen states enacted them.
Closely resembling federal law, state laws break down into two broad categories. In the first and broadest, the laws forbid the access by minors to what the laws usually call “harmful materials”—verbal and visual information that includes, but is not necessarily limited to, pornography. Sometimes these laws target “indecent” material; for example, Oklahoma and New York law each criminalize the transmission of indecent materials to minors.
Most state laws on transmission of indecent materials target exposure in public schools and libraries. Their remedy is to require, and in at least one case merely recommend, that these facilities install so-called Internet filtering software on their computers. At least six states have passed such laws: Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001–2002.
Like federal law, a second category of state law targets virtual child pornography. Aggressively defining this new category of criminal offense, these laws treat so-called virtual porn as severely as actual photography of minors. In the mid-1990s, for instance, both Kansas and Montana expanded their existing statutes to prohibit transmission and possession of such images, while other states such as Missouri and Minnesota enacted new laws.
In early court challenges, much more sweeping state cyber porn laws failed to pass constitutional tests in three states. In American Library Association v. Pataki (1997), a federal judge blocked enforcement of a New York statue prohibiting online indecency that had been modeled on the federal Communications Decency Act, ruling that it violated the Constitution’s Commerce Clause. In ACLU v. Johnson (1998), a federal district judge ruled on First Amendment grounds that New Mexico could not enforce a law criminalizing the online dissemination of any expression that involves nudity or sexual content. And in another victory for First Amendment advocates, a federal judge blocked Michigan’s 1999 law criminalizing online communications deemed harmful to minors in Cyberspace v. Engler (1999).
In September 2004, a federal district judge struck down Pennsylvania’s 2002 law requiring Internet service providers (ISPs) to disable or block access to child pornography Websites. The law also imposed criminal sanctions on ISPs who failed to comply. In CDT v, Pappert, No. 03-5051 (U.S.D.C. Eastern District PA, 2004), the district court ruled that the Internet Child Pornography Act, 18 Pa. Cons. Stat., Sections 7621-7630, failed to pass muster under both First Amendment and Commerce Clause challenges under the U.S. Constitution. In summary, because the Act blocked access to legitimate Internet content far outside of the state, it could not be viewed as the least restrictive means for furthering a legitimate governmental interest under the First Amendment. Moreover, because the Act involved Internet communications, it necessarily and substantially affected interstate commerce, prohibited under the Dormant Commerce Clause of the Constitution as well.