MILTON, Fla. - Defense attorneys for Ray Guhn, who faces state obscenity charges, filed three new motions Monday, claiming that Florida's obscenity law does not apply to Internet content and violates privacy rights guaranteed by the state constitution.
Among the motions filed is one seeking a pre-trial determination of the court's meaning of "as a whole" in the context of Internet obscenity allegations. While the defense said Guhn's entire website should be regarded collectively, the state has asserted that the site contains 400 separate instances of obscenity.
"For the past year, we have been asking the prosecution to tell us what they consider to be obscene, and we have still not received an answer," said Lawrence Walters, one of Guhn's defense attorneys. "We want to know if they are referring to the whole website, certain pictures or groups of pictures. We are now going to court, saying that it has to be the whole website because all of the cases that have interpreted the obscenity law have agreed that material has to be taken as a whole. These are images that are presented as part of one work, as one whole site, so it has to be considered that way."
Guhn's defense attorneys also motioned for the court to strike all obscenity allegations from the indictment, arguing that the state's obscenity law does not apply to online content. If it does apply, the attorneys claimed, the law would violate the U.S. Constitution's Dormant Commerce Clause.
"The more we look at this, the more we believe that the court has to dismiss this case due to the obscenity allegations," Walters said. "The Florida statute just does not cover Internet materials. Other statutes have dealt with indecent email or solicitation of minors on the Internet, where the law has been amended to specifically include Internet activities, but the obscenity statute does not. The legislature has decided not to expand the obscenity statute to cover the Internet yet. Yet the prosecutor is assuming that this covers Internet material. I would be surprised if the court does not dismiss this case."
The defense attorneys also claimed that Florida's obscenity law violates privacy rights guaranteed by the state constitution if it is applied to online content. The lawyers argued that since viewing online content occurs in the privacy of one's home, it qualifies as private interaction not subject to the state obscenity law.
"The Internet is much more like a telephone call than going to purchase a sexually explicit DVD in a public place," Walters said. "There is no display of it in the community, there is no public advertising about it, and no one has to go anywhere to get it. This was stated in Stanley v. Georgia, a very important court case.
"Obscenity is allowed in the privacy of one's own home. We are dealing with images that are transmitted there. As a result, it should be treated that way and not subjected to obscenity laws."
Walters called Guhn's case an important, precedent-setting case that raises issues that have been discussed in legal circles and on the Internet for years but have not been addressed by the courts.
