TALLAHASSEE, Fla. - Defense attorneys in the obscenity case of Clinton McCowen, aka Ray Guhn, have filed a petition for a writ of prohibition, seeking to halt exercising jurisdiction over the alleged offenses.
"By allowing the obscenity case to proceed, the trial court is acting beyond the court's jurisdiction, and that should be stopped," McCowen's attorney Lawrence Walters told AVN Online. "Florida's obscenity statute was not amended to cover Internet activities, and its current language does not apply to online distribution of obscenity."
The petition, filed at the 1st U.S. District Court of Appeals in Tallahassee, asks the court, "Do the state's various obscenity statutes apply to allegedly obscene materials disseminated solely via the Internet, and, if so, do such statutes violate what has come to be known as the dormant Commerce Clause of ... the [U.S.] Constitution?"
Walters said the Florida Legislature did not make the statute applicable to Internet obscenity "because doing so would violate the Commerce Clause."
"At least six courts have found that states cannot regulate the content of erotic websites," he said. "That is the province of the federal government only. Therefore, the state is in a box: Either the statute does not apply or, if it does, the law is unconstitutional in violation of the Commerce Clause."
In the petition, Walters noted that the state does not dispute that the materials at issue in the case are entirely Internet-based.
Additionally, the petition states that while the Florida Legislature has amended its child-pornography statutes and laws to include the Internet as a medium for illegally transmitting harmful material to minors, the Legislature has not amended the state obscenity statute to do the same.
In the petition, Walters also argues that the court should grant the writ of prohibition due to the lack of a plain, speedy and adequate legal remedy for his client. If the writ isn't granted, he said, McCowen would be denied his "constitutional right to avoid prosecution under an unconstitutional or inapplicable statute."
"Enduring a three-week jury trial surrounding these charges followed by an appeal would be an inadequate method for securing his constitutional right to be free from an unconstitutional prosecution," Walters stated in the petition.
Walters said the writ would remove the obscenity offenses from McCowen's indictment.
"That means the money-laundering case goes away completely, and the racketeering case is significantly weakened," he said. "The state could continue to pursue the case under the other theories, including prostitution, but we feel we have viable defenses to those claims, as well."
The appeals court also could issue an "order to show cause" if it finds merit in the defense's petition, Walters said, explaining that this would "put a complete stop to the prosecution until the appellate case is resolved."
If the court rejects the petition, Walters said, the trial court will move forward with the case with a trial within four to six months.
