Three national civil liberties groups – the American Civil Liberties Union of Florida, the Free Speech Coalition and the First Amendment Lawyers Association – filed an amicus brief with Florida's Second Circuit Court of Appeals in an attempt to get bail reinstated for webmaster Christopher Wilson.
Wilson made national headlines this summer for offering to trade images with soldiers stationed in Iraq and Afghanistan: Wilson's sexually explicit photos for authentic images of dead soldiers and civilians in the two countries. Secretary of Defense Donald Rumsfeld took a dim view of the offer, and instructed his junior officers to start an official investigation to determine which enlisted personnel had taken Wilson up on his offer.
In the meantime, Wilson, who operated his site from his home in Lakeland, Fla., was arrested by Polk County Sheriff’s officers for posting, not the violent war photos, but allegedly obscene amateur photos submitted by content providers and subscribers to his site.
Wilson was released on an exorbitant $151,000 bail, and while awaiting trial, he moved his residence to Orange County, Fla., near Orlando, and continued to operate his site, which is hosted in The Netherlands. Prosecutors then filed a motion to revoke Wilson's bail for continuing his business in the new location, which they claimed was a violation of his bail conditions. A judge agreed, and Wilson was remanded to Polk County Jail on Dec. 16.
The case against Wilson was troubling from the start, especially considering that the timing of the bust coincided closely with the military's investigation of soldiers who'd taken Wilson up on his offer. The Polk County prosecutor's position that the revocation was justified because Wilson moved his place of business is difficult to fathom; Wilson remained in Florida, less than 80 miles from his former residence and with no attempt to hide his location.
Beyond that, however, is the jurisdictional question of how a Florida state judge is empowered to hear charges involving images on the World Wide Web, especially when the images are stored on servers outside the United States, roughly 4600 miles away.
Several of those points were dealt with in the free speech organizations' amicus brief, which was filed Thursday in the Second District Appeals Court. Most notable was the brief's attack, authored by First Amendment Lawyers Assn. members Reed Lee (who also serves of the Free Speech Coalition board) and Gary Edinger, on the vagueness of the obscenity standard, and the impossibility of determining, pre-trial, whether any particular image is "obscene" and therefore putatively outside the protections of the First Amendment, or protected speech immune from prosecution.
"Unlike any other criminal offense," the amici wrote, "the components of an obscenity violation are not pre-defined. That is, material is transformed from being expression protected by the First Amendment to contraband only upon a jury verdict of guilt. Because the definition of obscenity compelled by the opinion in Miller v. California, 413 U.S. 15 (1973) contains subjective community standard components, there can never be predictability. On recent occasions American jurors have acquitted images of bestiality, urination, defecation, fist insertion, as well as extremely aggressive, misogynist depictions. This unpredictability is aggravated by the multiplicity of jurisdictions in which any 'adult' website can be prosecuted. There are thousands of separate communities in the United States, each capable of having a separate legally cognizable 'community standard' against which to evaluate obscenity..."
"The uncertainty to which all adult webmasters and owners must acclimate themselves is balanced by how rare such prosecutions are, and the confidence that, during the often lengthy pendency of the proceedings, a webmaster may continue to operate the business, communicate ideas, and earn the significant legal fees necessary to put forward an obscenity defense. It is in this light that the threat to incarcerate an individual pending trial, without any jury determination of an obscenity, becomes so fraught with censorial dangers."
Describing the state attorney's "unprecedented theory" of the case and the trial court's "precipitous action" as "fly[ing] in the face of so much basic, settled First Amendment law," Lee and Edinger voice strong concern over the censorious effect that Wilson's incarceration will have on the entire Web community.
"If the procedures and substantive standards followed in this case are approved by the Courts, the chilling effect on protected speech will be dramatic," the amici warned. "A law enforcement agency could effectively prevent sexually explicit speech by bringing a single count of obscenity against a webmaster. If the webmaster failed to do 'take down' the site, he or she would risk incarceration on every occasion. The risk of a bail revocation is so high that the webmaster would be forced to self-censor in order to preserve his or her liberty pending a trial on the underlying charges. If remanding a defendant into custody for exercising First Amendment freedoms is upheld, no adult webmaster or operator who is within the physical reach of state or federal government officers can feel safe."
The brief also notes that if a webmaster is forced to take down a site for fear of being jailed on obscenity charges, it is unlikely that the business will be able to reopen, since its subscribers would be entitled to refunds of their credit card payments, and, as the brief puts it, "It is the policy of all credit card processors for adult websites to decline to service websites with more than a minimal number of refunds or 'chargebacks.' Thus even if acquitted, it is unlikely to the point of unimaginable that the accused would have the ability to restart an adult website, because no one will process credit cards for a site with such a history of mandatory reimbursement."
Of particular concern to the amici is the prior restraint of speech resulting from the circumstances of the Wilson case.
Here, a single law enforcement agency and a single Judge have forced a citizen to cease engaging in presumptively protected speech before he has been convicted of any crime and before the existence of a crime has even been established," Lee and Edinger emphasize. "This latter point is crucial and must be reiterated: until a jury of his peers concludes that materials on Mr. Wilson’s website are obscene under prevailing law and applicable community standards, no crime has been committed. Indeed, the opposite is true; Mr. Wilson’s speech is completely protected unless it is finally adjudicated to be obscene."
Lee and Edinger then proceed to explain the basic First Amendment principles laid down by the U.S. Supreme Court in more than a dozen cases regarding presumptively-protected speech – an explanation that should not be necessary for any prosecutor or judge, but that apparently was necessary in this situation.
"As a result of all of the foregoing," the amici conclude, "Wilson now sits in jail awaiting trial on account of a few images selected from a large Netherlands-based website even though the State Attorney failed to carry his burden of establishing that the work (or works) from which those images were taken is legally obscene. Under such circumstances, the trial court took adverse action against Wilson even though the constitutional presumption that those images are protected has not been properly rebutted. For those reasons alone, Wilson must be released immediately. As Amici note above, the interests at stake are not those of Wilson alone, but the thousands of other webmasters and Internet 'surfers' who express themselves utilizing depictions very similar to those on Mr. Wilson’s website."
Lee's and Edinger's arguments are unassailable, so it seems likely that Wilson will be released on his original bail once the Second District Appeals Court makes its decision. However, that will only mean that Wilson will be subjected to many more court proceedings in the future, all of which apparently instigated by a government angry that its soldiers were willing to trade the pornography of death for the pornography of life.
