I've been asked to do something a little unusual in the first legal column I've written for AVN Online: write about one of my ongoing cases. Many of you may already be aware of this case because, even though the saga began several months ago (an eternity in Internet years), it remains an important test case from a First Amendment standpoint. It also teaches several practical lessons for the Webmaster, one of which is that obscenity prosecutions often drag on for years. The reason this is important is that in the event that someday you face this sort of criminal prosecution, your instinctual anxiety will compel you to want a final resolution to the case as quickly as possible. That knee jerk reaction is akin to fighting your way out of quicksand and is just as counter-productive. The most important thing you can do to help bolster your chances is to obtain counsel experienced with the First Amendment issues and then follow their advice.
If the Internet is truly a global medium, Polk County, Florida, must be the center of the universe. In December 1998, a Polk County woman who operates a pay site on the Cyberdream Network (www.dreamnet.com) under the pseudonym BeckaLynn, received a horrible and threatening E-mail. Like anyone who might receives such a threat, she called the police. Unfortunately for her and her husband, Polk County Sheriff's Deputy Charlie Gates answered the call.
Deputy Gates had recently been assigned to the newly created Computer Crimes Unit, an "elite" high tech crimes division in the Sheriff's office. It is currently not known what other high tech crimes exist in Polk County. He contacted the couple who informed him that they operated an adult-oriented site and that he could contact them by E-mail or via their chat room. After reviewing the site, Deputy Gates, hot on the porn trail, immediately lost interest in the threats that had brought him into contact with the couple in the first place. Instead he submitted an investigative subpoena for the couple's long distance telephone calls. A few days later, Deputy Gates obtained a credit card and a post office box, and set up a covert online subscription to the site.
Ten days later, Deputy Gates, accompanied by another deputy, finally arrived at the couple's home, ostensibly to investigate the threats against them. There the couple showed Deputy Gates their computer system and the E-mail death threats. The police report only contains information about the type of computer equipment, and the passwords and paperwork that the deputies noticed on the couple's desk. Apparently, the officers believed they had made a big break and exhibited no concern whatsoever about the online death threats that BeckaLynn was receiving.
A few days later, Deputy Gates downloaded some of the images and took them to a judge for probable cause determination. A probable cause determination of obscenity simply means that the material is sexually explicit and could possibly be found obscene by a jury. Often police and prosecutors have their own favorite judges who will issue whatever warrants the police desire regardless of the merits of the case. In this case, it is unclear just what the relationship was between the police and the judge who ultimately signed the probable cause finding and Search Warrant. We have, however, filed a challenge on several grounds to the probable cause finding.
In an obscenity case against an adult video store in southwest Florida, Miragaya v. State, 654 so. 2d 262 (Fla. 2d DCA 1995), police officers rented movies, watched them and then made illegal copies before returning them to the store. The trial court suppressed the evidence (the videos) in that case, finding the government's behavior unlawful because, rather than obtain a prior judicial determination of obscenity as required by law, the police did not have a judge view the material before making the illegal dupes. The case was reversed by the Circuit Court and reversed again by the Second District Court of Appeal, ultimately suppressing all the evidence.
In our case, we have filed a Motion to Suppress the evidence because the police made the identical snafu, albeit in a new medium. Rather than asking a judge to go online and look at the materials, Deputy Gates violated the terms and conditions of the site, and may have violated federal copyright laws, by illegally copying the work and then showing it to the judge. This is a black and white issue and in our favor according to the facts from the police reports. If this case did not deal with sex, or were in any other county court system within the jurisdiction of the Second District Court of Appeal, we would almost assuredly be putting it to bed based on that motion alone, since Miragaya is a controlling decision from a higher court. But this is Imperial (I did not make this up) Polk County.
Another motion that we filed attacked the methodology of the probable cause finding. To lose the presumption that speech is constitutionally protected and therefore obscene, the state must prove that: a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex; b) that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined under the applicable state law; and c) that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. This test was articulated by the Supreme Court in Miller v. California in 1973 and adopted verbatim or near verbatim in almost every state.
A plain reading of the law reveals that the Supreme Court emphasized that sexually oriented materials must be judged as a whole and not judged picture by picture as was done in this case. In fact, Deputy Gates made ten separate applications for probable cause determinations and the judge issued ten separate probable cause findings for ten separate individual pictures. Now, almost laughably, in light of their separate applications and findings, and in the face of our motion to suppress the evidence, they are attempting to claim that the pictures were considered individually as a whole. Apparently, the whole Website was never considered
In the execution of the Search Warrant, Deputy Gates made another grave error. Three years before the Miller test was articulated, the Supreme Court in Stanley v. Georgia held that it is unconstitutional to seize obscene materials from the homes of individuals who intend them for their own use. On the other hand, courts have not extended this concept to suppliers of adult fare and have limited its application to protecting the privacy of the home. Of course those limitations are outdated by the advent of the Internet. In this case, Deputy Gates seized not only the computer equipment utilized to operate the site, including patrons' E-mail, but also our client's own personal video collection, her children's computer, her personal vibrator and most of her clothing. (Since someone wore a Bill Clinton mask in some of the pictures, maybe they were looking for stains on BeckaLynn's dresses).
As if charging these people with a serious felony was not enough, when our client spoke out against the charges, a civil suit was then filed in an attempt to forfeit their seized personal property. At the same time our clients were charged, another couple also met the same fate for appearing on a friend's Website. When their local criminal defense attorney was quoted in the newspaper stating that the material on their site was no different than that available in numerous mom and pop video stores, the Sheriff responded with a massive sweep of area video stores, and virtually all were charged. In fact, Polk County has a long history of charging anyone who possesses adult material with racketeering in an effort to force them out of business.
If the motions to suppress are not granted, we will argue next that the law is unconstitutionally vague and outdated, though courts are reluctant to make that finding. The last time a judge in Polk County held the obscenity law unconstitutional, the religious right held a protest outside of his home! How's that for Polk County justice?
The next level of pretrial motions would be to define the scope of the community. We contend that local community standards are anathema to a World Wide Web. It is up in the air what the relevant community is in Florida. Some have argued, and the Florida Supreme Court has upheld, a county by county standard. On the other hand, we have also received rulings that a statewide standard is the appropriate community in Florida.
If all else fails, this case may go to a jury. It is only a jury that can, in the final analysis, set community standards, not police, prosecutors, or judges sitting alone behind closed doors.
To help defray the cost of litigation, we advised the clients to put up what has widely been reported to be the first-ever legal defense site on the Web, complete with bumper stickers and buttons that made headlines. One of the bumper stickers reads: "Now Entering Polk County: Please Surrender Your Vibrators." The radio stations are having a field day with it. So far our clients have raised enough money to pay for most of their defense to date. They are trying to raise enough to file a federal lawsuit for violation of their civil rights. The site can be found at www.dreamnet.com\\becka\\.
I hope this case sheds some light on what to expect when some political hack or misguided law enforcement officer looking for a promotion decides to make a name for themselves at your expense. I hope you'll have the courage our clients have.
(David Wasserman is a partner in the Winter Park, Florida, firm of Wasserman & Walters. He can be reached through the firm's Website at www.1st-amendment.com. The foregoing is intended as general information and is not as legal advice on any particular matter.)
