In a move to have an obscenity case against a client dismissed, First Amendment attorney Lawrence G. Walters has filed with a Polk County circuit court a series of motions that claim Florida’s obscenity statute is unconstitutional.
Walters represents Christopher Wilson, 27, a Lakeland, Fla., man who was arrested in October and charged with 301 obscenity violations based on videos and still photographs displayed on his website, NowThatsFuckedUp.com. The member-participation adult entertainment site became infamous after it was reported that Wilson granted U.S. GIs free access to its for-pay members area in exchange for photos from Iraq and Afghanistan. Wilson, a former Eagle Lake, Fla., police officer, said American soldiers serving overseas could not access online porn because credit-card companies would not authorize charges originating from that region.
The prosecution is problematic on a number of levels, says Walters. First and foremost, Florida’s law is vague because it fails to define “community,” a key aspect of obscenity law. Walters has given the court several options for the definition, including the confines of Polk County (the most restrictive), the state of Florida, the U.S. as a whole, and the “cyber-community” encompassed by the Internet (the most lenient).
“We don’t believe Polk County community standards should be allowed to determine what materials are available on the Internet,” Walters says, echoing a theme becoming more common in cases involving adult content in the Internet age.
In addition, Walters says, the word “prurient” contained in Florida’s statute is no longer relevant in today’s society. “That word is no longer in general use today, and juries don’t know what it means,” he says. “We believe the law should be struck down on that alone.” He cites a similar Florida case from several years ago in which the prosecution of a “house of ill fame” was thrown out based on antiquated terminology.
If the terminology arguments don’t sway the court, Walters hopes a “federal pre-emption” one will. “In certain situations, only the feds can regulate activities without violating the Commerce Clause of the Constitution,” Walters says. “In previous cases in seven other states, ‘harmful to minors’ cases were struck down on Commerce Clause grounds.”
According to §230 of the Communications Decency Act, the embattled law that continues to govern obscenity prosecutions at the federal level, all state obscenity laws that are inconsistent with federal law automatically are pre-empted.
“Between those two arguments, which are in many ways related, we hope to convince the court that only the federal government can regulate obscenity, as opposed to the states,” Walters avers.
There’s also a Fourth Amendment issue involved, and if precedent is any indication, it’s a lulu. Brought to light by the ruling in U.S. vs. Extreme Associates, the argument “it’s not illegal for Americans to possess ‘obscene’ materials in the privacy of their own homes or to buy them, so how can a governmental body insist that it’s illegal to offer them for sale?” also carries considerable weight, based on previous federal district court rulings in Pennsylvania and Texas.
Walters also filed a motion asking the court to suppress all materials seized as evidence in the case on the grounds that the warrant was overly broad. By failing to specify the materials of interest – essentially allowing the investigating officers to seize anything that might be obscene in their own opinions – the warrant violated special conditions attached to First Amendment prosecutions, Walters says. That speaks to the issue of probable cause, he notes, because the investigators selected images and videos individually instead of considering the website as a whole.
In this case in particular, that denied the court the opportunity to consider the extreme political value Walters and Wilson believe is embodied in the website: combatant-taken and -posted photographs from within a war zone make a powerful political statement.
It’s the political value of the website that Walters and Wilson believe made it a target for “retaliatory prosecution.” “We’re still investigating any potential tie between the federal government and this local prosecution,” Walters says.
In the meantime, in case the court does not dismiss the charges against Wilson, Walters and his team are “investigating a comparable evidence issue,” he says. If the matter goes to trial, the defense will need to show what types of adult materials are acceptable in Polk County. To that end, Walters is soliciting input from other adult webmasters whose server logs might provide insight about Polk County traffic to adult entertainment destinations online. Members of the online adult entertainment community who can shed light on the issue may contact Walters at [email protected].
