BEFORE THE UNITED STATES DEPARTMENT OF JUSTICE

Washington, D.C. 20530

In the Matter of Docket No. CRM 104

Revised Regulations for Records AG Order No. 2888-2007 Relating to Visual Depictions of

Sexually Explicit Conduct RIN 1105-AB18

To: Andrew Oosterbaan, Chief

Child Exploitation and Obscenity Section Criminal Division

United States Department of Justice Washington, D.C. 20530

Attn: “Docket No. CRM 104”

COMMENTS

These comments are permitted pursuant to the above captioned proposed rule, dated July 12, 2007, 69 F.R. 38033, and relating to 18 U.S.C. § 2257, (“2257”).

BACKGROUND AND INTRODUCTION

The undersigned attorney is a partner in the law firm of Weston, Garrou, DeWitt & Walters, which represents many producers and distributors of still and motion picture and print publications, to which 2257 applies. Our clients include both brick-and-mortar businesses and Internet-based webmasters. The firm also represents numerous Internet service providers, hosts, search engines, age verification services, access providers, forum operators, blogs, as well as entrepreneurs involved in emerging technologies and communication devices not yet released. All of the proposed regulations apply to at least some of those clients. The undersigned has solicited and obtained significant input from the firm’s clients, and has used factual data and other information in compiling these Comments.

I.

THE REGULATIONS IMPOSE UNDUE AND EXCESSIVE BURDEN ON SECONDARY PRODUCERS

Imposing the requirements of full 2257 document maintenance and inspection on so- called “secondary producers” having no involvement in the actual hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers, imposes an undue and excessive burden on those secondary producers. The regulations interpret the Adam Walsh Child Safety and Protection Act, Public Law 109-248 (hereinafter “the Adam Walsh Act”) as requiring full compliance by all producers with respect to any depictions subject to 2257 compliance, produced after July 27, 2006. The Department contends that while it could require

compliance for images produced after July 3, 1995; the effective date of 2257; it chooses not to do so to avoid any “conceivable ex post facto concern.” However, significant ex post facto concerns remain with respect to requiring compliance for all images produced after July 27, 2006. Importantly, secondary producers had, until May 1, 2007, relied on the protections of the preliminary injunction issued in Free Speech Coalition v. Gonzalez, Case No. 1:05-cv-01126- WDM-BNB (D. Co.), which prevented records inspections and enforcement actions against secondary producers/Free Speech Coalition members. This injunction was based on the well- reasoned decision of Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998) holding that 2257 did not apply to secondary producers. As a result of these unique circumstances, many secondary producers have been unable to acquire age verification documents mandated by 2257, in connection with images displayed on secondary producers’ websites. Primary producers of such material have been hesitant to circulate personal information relating to performers depicted in such content, citing privacy concerns and the potential for stalking and/or identity theft resulting from widespread circulation of this information to all secondary producer/webmasters displaying the images on the Internet. This hesitancy was buttressed by the injunction rendered in favor of the Free Speech Coalition, as many primary producers took the position that secondary producers did not need to acquire 2257 documents. As a result, if the regulations are adopted with an effective date for compliance by secondary producers of July 27, 2006, a host of depictions, otherwise protected by the First Amendment to the United States Constitution, will be suddenly criminalized, and their continued display subject to federal felony prosecution. Such widespread criminalization of protected material offends basic First Amendment principles and must be avoided. The undersigned suggests that any records keeping requirements imposed upon secondary producers must be prospective only, or at the very least, relate back only to the date the Free Speech Coalition injunction was vacated.

The undersigned echoes the concerns expressed by the Free Speech Coalition in its comments simultaneously submitted. In particular, the undersigned can confirm that astronomical costs will be borne by industry producers in the attempt to ensure compliance with the new regulations. These costs take the form of additional staffing, software development, updating and maintenance, and institution of new compliance procedures. These costs will be excessive for large businesses, and insurmountable for smaller operations. Many secondary producers in the online community are operated by one or two individuals with a minimal legal compliance budget. Imposing complex document collection and cross-referencing requirements on such small business, when objectively reasonable alternatives remain available, is unnecessary and unduly burdensome. For many such businesses, this new regulatory requirement will mean the difference between a viable business, and a net loss. Any legitimate concerns relating to document availability can be addressed by allowing secondary producers to designate the name and address of the primary producer’s records custodian, without requiring the maintenance of a separate and duplicate set of regulatory documents.

The legal costs alone, to be borne by affected producers to ensure proper 2257 compliance, will be excessive. Some companies will be required to hire a specialized attorney to do nothing other than oversee the company’s 2257 compliance obligations. Given the draconian sanctions for failing to comply with one or more of the numerous substantive or procedural requirements imposed by the statute and the regulations, hyper-technical compliance oversight

and constant review is required. The cost to be borne by the industry, and the individuals involved, is exorbitant and unnecessary.

The undersigned reiterates the other concerns identified by the Free Speech Coalition with respect to the expense of storage or 2257 material, the volume of material required to properly comply, the cost of software to facilitate compliance, the expense of hiring Records Custodians available during all business hours for potential inspections, the practical and privacy concerns associated with address disclosure requirement for home-based businesses, the inapplicability of the regulations to live webcam performances, the inability to inspect original ID’s by secondary producers, and the additional concerns regarding retroactivity. If records keeping obligations are to be imposed on secondary producers at all, the undersigned urges the Department to make any such obligations prospective only, and not retrospective to July 27, 2006 – or any other date in the past.

II.

CONCERNS WITH THE “LASCIVIOUS DISPLAY” DEFINITION

The proposed rule seeks to impose 2257 obligations on the commercial display of depictions involving the “lascivious exhibition of the genitals or pubic area of the person.” 28

18. § 75.1(n) (proposed). The Comments to the proposed regulations recognize that this term has been interpreted by federal case law, citing United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) (setting forth the so-called “Dost factors” for determining whether the display of a child’s genitals or pubic area is “lascivious” under 18 U.S.C. §2256). However, application of the Dost factors is not readily transferable to evaluating whether images depicting adults should qualify for 2257 compliance. The Dost factors primarily relate to whether the set, setting, pose, and visual depictions are appropriate or natural for a child on the one hand, or unduly suggestive or erotic for a child, on the other. These factors are virtually nonsensical when applied to depictions of adults. Children cannot legally be portrayed in adult-oriented, sexual poses and situations. Therefore, the factors set forth in the Dost opinion have some logical bearing on determining whether an image is an innocent depiction of a nude child – such as in a bathtub or a crib – versus a depiction of illegal child pornography. However, given the First Amendment’s protection of sexually explicit material, the factors make no sense when applied to erotic depictions of adults. Such depictions are not inherently illegal or improper. Therefore, considerations such as whether “the focal point of the visual depiction is on the child’s genitalia or pubic area; whether the child is depicted in an unnatural pose or in inappropriate attire; whether the child is fully or partially clothed; whether the visual depiction suggests sexually coyness or willingness to engage in sexual activity and whether the visual depiction is intended or designed to elicit a sexual response in the viewer,” are not appropriate or logical considerations where adult images are concerned.

Moreover, if case law is to determine the applicability of 2257 obligations to images involving the lascivious display of the genitals or pubic area, another decision renders the regulatory scheme entirely unworkable. In United States v. Knox, 32 F.3d 733 (3d Cir. 1994), the court concluded that federal child pornography laws could apply even to depictions of minors who are fully clothed, if other factors set forth in Dost were present. As a result, 2257

obligations could be imposed on an extremely voluminous amount of depictions – the vast majority of which should not be within the purview of the regulations, given their spirit and intent. Millions of images on websites such as Myspace.com, Youtube.com, and Facebook.com, given their commercial display, may now require full 2257 compliance even though they do not involve nudity or sexual activity. Expanding the scope of content covered by 2257 regulatory obligations by using the judicial interpretations of § 2256 – related to child pornography – causes the regulations to become overly broad and applicable to content to which they were never intended to apply. While the Comments to the proposed Rule refer to the previous statutory exclusion of lascivious depictions as an “anomaly,” it is more likely that the exclusion of this category of content was an intentional effort to restrict application of the law to only those images involving actual sexually explicit conduct, and avoid the overbreadth concerns resulting from application of the statutory and regulatory obligations to images depicting fully clothed adults.

Further concerns are generated by imposing a cutoff date of July 27, 2006, for 2257 compliance with respect to images depicting the lascivious display of the genitals or pubic area. Now, both primary producers and secondary producers/webmasters, many of whom have had no involvement in the creation of the content at issue, will be required to divine the date on which all content was originally produced (even though such information was never required by the 2257 statutory scheme) and isolate those images that somehow fall within the Dost factors for lascivious display, and further ensure that those images are fully supported by 2257 age documents. The potential for inadvertent erroneous compliance efforts in this regard is overwhelming. The producers should not be put in the position of first attempting to apply an illogical legal test to determine whether a particular depiction fits within the regulatory scheme, and then seek out information that was never required by the statute, to determine whether 2257 obligations attach to each and every image displayed on a website – sometimes numbering in the millions. These concerns render the proposed regulations overly broad and excessively burdensome.

III.

REQUIRING A FULL 2257 DISCLOSURE STATEMENT ON EACH WEB PAGE IS UNNECESSARY AND OVERLY BURDENSOME

As proposed, 28 C..F.R. § 75.6(a) requires that the statement describing the location of 2257 records be included on “every page of a website on which a visual depiction of an actual human being engaged in actually sexually explicit conduct appears.” This new obligation is unnecessary and overly burdensome.

The current regulations adopted on June 23, 2005, require that a link to the mandated disclosure statement appear on a website’s homepage or principle URL. § 75.8(d). The proposed regulations dramatically increase the required locations and reproductions of the full disclosure statement by mandating that it appear on each and every webpage where triggering content appears. No rationale is offered by the Comments to the proposed regulations for this dramatically more burdensome compliance obligation, and none exists. Affixing the required disclosure statement to the homepage or principle URL of a website has worked within the

industry for years. This compliance method was the industry standard even before the 2005 regulations first imposed the requirement. Now, the proposed regulations seek to require that webmasters reproduce the entire disclosure statement on each and every webpage, even though the information was readily accessible and immediately viewable when the user first entered the website.

Clearly the imposition of the requirement that the entire disclosure statement be placed on each page is not derived from the statute, and it is the proposed regulations that impose the unconstitutional burden on speech, not the statute. Specifically, § 2257(e)(1) states,

Any person to whom subsection (a) applies shall cause to be affixed to every copy of any matter described in paragraph (1) of subsection (a) of this section, in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required by this section with respect to all performers depicted in that copy of the matter may be located [Emphasis added.]. In this paragraph, the term “copy” includes every page of a website on which matter described in subsection

1. appears.

It would not be an unreasonable implementation of the statute for the Department to apply the above by requiring that the disclosure statement on each applicable page be posted by way of a hyperlink, as allowed by the current regulations. While the interference with First Amendment freedoms might still be impermissible by such an implementation of the statutory requirement of that a disclosure appear on each page, it certainly would be a considerable step in the right direction, and perhaps the best that the Department can do without contradicting the requirements of the statute.

In the absence of some commonsense modification, the proposed duplicitous requirement will only increase the cost of regulatory compliance, and will do nothing to protect children or make the required information more readily accessible to the Department. Several pieces of information are required for a compliant disclosure statement. Moreover, since secondary producers are allowed to list the primary producers’ Records Custodian(s), as an optional disclosure compliance method, and since many websites are made up of content provided from numerous primary producers, the disclosure statement for some websites runs several “pages” long. This, combined with the newly-minted regulatory requirement of including an original date of production (as discussed infra) in the disclosure statement, will transform many websites into more disclosure statement than website. The new requirement will decimate the look and feel of all websites to which the regulations apply, and will require a complete restructuring of each and every website to allow for this substantially-increased compliance obligation.

It should be noted that website space is at a premium. Website designers struggle to include only the most relevant and necessary information on any particular webpage, given the short amount of time that a typical user spends on any given webpage.¹ Website “clutter” is a constant problem for web designers who seek to create a clear interface that is not confusing or

¹ The typical website user’s attention span is measured in seconds. Mainte-Net.com.

overwhelming for users. Requiring that each webpage now include a substantial amount of regulatory information, just for the privilege of displaying otherwise protected expression without criminal penalties, violates traditional notions of expressive freedom, interferes with the creative process, and is overly burdensome.

IV.

MANDATING THE DATE OF ORIGINAL PRODUCTION IN THE DISCLOSURE STATEMENT IS UNWORKABLE AND OVERLY BURDENSOME

As proposed, 28 C.F.R. § 75.6(b)(2) inexplicably would change in the available dates that can be used to satisfy the ‘date’ requirement in the disclosure statement. While the current regulations allow each producer to select from the following dates: (as most applicable to the particular depiction) “manufacture, publication, duplication, reproduction, or reissuance of the matter;” the proposed regulation limits the information to the “date of original production of the matter.” Interestingly, nowhere in the existing statute or regulatory scheme is the original date of production required for triggering content. In fact, the current regulations, at § 75.2(e), require that the required information be segregated from all other records, which shall not contain any other records. Accordingly, it would have been a regulatory violation to include the original date of production of any depiction within the required 2257 records, and that still appears to be the case today. Therefore, the proposed rule mandates inclusion of information in the disclosure statement that cannot and must not be found within the required 2257 records. As a result, the requirement is ultra vires, illogical and overly burdensome.

Even if access to the original production date information were readily available, this new requirement (not found anywhere in the statute) will mandate a massive overhaul of each and every disclosure statement now existing in connection with any triggering content. Given the inability for most secondary producers to access original production date information for content appearing on websites, the vast majority of secondary producers choose from one or more of the other currently-authorized dates when completing their disclosure statements. Many use the date of duplication, reproduction, or reissuance – all of which would ordinarily be within their unique knowledge. If a new production-date requirement is imposed upon all producers, specifically included secondary producers/webmasters, such entities will be put to the Herculean task of identifying an original production date for each and every image appearing on their websites, which often number in the hundreds of thousands, if not millions, for some mega-sites. As noted above, the original production date is often not readily available, particularly since this information has never been required by § 2257. Consequently, hosts of most websites will immediately become out of compliance with 2257 obligations, in the event the proposed regulations include a new, original production date requirement for disclosure statements.

Another concern relates to the difficulty encountered in developing a rational system for tying production dates to images appearing on websites. Many webpages include content produced on different dates, within the same webpage. In many cases, each image will have been produced on a different date, although all are included in the same webpage. Accordingly, each webmaster will need to develop a unique system of cross-referencing, coding, or identifying the production date of each image on any given webpage, within the disclosure statement. This

new obligation will result in substantially increased burden and cost of compliance, if the information can be required at all. The undersigned therefore urges the Department to maintain the current system, allowing webmasters to identify the most relevant date, for the depictions in question, by authorizing producers to select from the dates of production, manufacture, publication, duplication, reproduction, or reissuance of any given depiction.

V.

THE PROPOSED RULE WILL HAVE AN ANNUAL EFFECT ON THE ECONOMY WHICH WELL EXCEEDS $100 MILLION DOLLARS

The Department contends, in accordance with Executive Order 12866, that the proposed rule will not have an annual effect on the economy of $100 million or more. This is factually untrue. The Department, itself, estimates that there are currently five-hundred thousand (500,000) websites producing visual depictions of actual sexually explicit conduct, constituting approximately five thousand (5,000) businesses. See, Comments to proposed rule. While the undersigned believes, having had considerable exposure to the industry, that the actual numbers are substantially higher, using the Department’s own estimates, it cannot be said that the impact of the proposed rule will be less than $100 million per year.

As noted by the Free Speech Coalition in its comments, the burden on both small and large businesses in terms of increased staffing, software support, and legal advice will be substantial and possibly incalculable. The need for secondary producers to employ a Records Custodian to be available a minimum of twenty (20) hours per week for five thousand (5,000) businesses would exceed the $100 million threshold itself,² but the substantial costs resulting

from the redesign of each website to accommodate for a disclosure statement on each and every webpage, along with the research and implementation of the production date requirement, will easily exceed the threshold impact itself.

A poll of this firm’s web-based clients requesting a cost estimate to comply with the new disclosure requirements indicates an average cost of annual compliance at $210,092 per business. This, multiplied by the minimum 5,000 affected businesses, well exceeds the $100 million threshold requirement. Accordingly, this rule should be reviewed and promulgated in accordance with the requirements pertaining to rules which will have a greater than $100 million annual impact on the economy.

VI. CONCLUSION

In summary, the undersigned requests that the Department substantially revise the proposed Rule to address the concerns outlined herein. The burden imposed upon producers as a result of compliance with the proposed Rule would be clearly excessive. This concern, along

² Assuming that an average Records Custodian would require a salary of at least $30,000 per year, times five thousand (5,000) businesses, results in an annual impact of $150 million itself.

with the other legal issues identified in these Comments, should be considered and addressed when adopting the final Amended Regulations.

Respectfully Submitted,

Lawrence G. Walters, Esq. Larry@LawrenceWalters.com

WESTON, GARROU, DEWITT & WALTERS

781 Douglas Avenue Altamonte Springs, FL 32714 (407) 975-9150

Fax (407) 774-6151

Principal Office:

12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025

(310) 442-0072

Fax (310) 442-0899

Dated: September 10, 2007

GOVERNMENT-SANCTIONED COPYRIGHT INFRINGEMENT?

By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

A little-known dispute between the island nation of Antigua and the United States may turn into a major headache for media companies, including those in the adult entertainment industry. Specifically, Antigua is threatening to withdraw its agreement to protect United States copyright and other intellectual property rights, as a result of the United States’ refusal to honor a World Trade Organization (“WTO”) ruling, finding it in non-compliance with the 1994 General Agreement on Trade and Services (GATS).

The WTO dispute arose out of United States’ efforts to criminally prosecute online gambling websites – particularly those involved in sports betting. Antigua happens to be one of the nations that issues licenses for Internet gambling businesses. Accordingly, it has become a virtual haven for online gambling companies looking to set up shop and offer their services throughout the world, including to customers in the United States. A United States entrepreneur by the name of Jay Cohen decided to set up such a business, headquartered in Antigua, around the turn of the century. The United States Government took the position that his online sports

betting service violated the Wire Wager Act,¹ and claimed that Cohen could be held criminally responsible as a United States citizen, even though his business was established offshore, in a jurisdiction that specifically permits online gambling. Cohen was convicted at trial, and his conviction was affirmed on appeal.² The United States Supreme Court refused to intercede, and allowed the conviction to stand.³ Cohen served about 18 months in jail, and has since been released.⁴

This prosecution, and other saber-rattling by the United States against Antiguan casinos and sports books, caused the Country to evaluate its legal options in response. The option it chose to pursue was a formal claim filed with the World Trade Organization, alleging discriminatory treatment by the United States against offshore gambling enterprises, as compared to those based in the United States. Interestingly, the United States appears to allow some forms of online gambling – particularly off-track horse betting via the Internet⁵ – while it completely prohibits any such gambling on foreign-based websites. While Antigua raised a number of other

¹ 18 U.S.C. § 1084.

² U.S. v. Cohen, 260 F.3d 68 (2^nd Cir. 2001), cert. den. 536 U.S. 922, 122 S.Ct. 2587, 153 L.Ed.2d 777 (2002).

³ Id.

⁴ Ed Koch, “’Net gaming operator Cohen freed from prison,” Las Vegas Sun (March 23, 2004), which can be viewed at: http://www.lasvegassun.com/sunbin/stories/sun/2004/mar/23/516573962.html.

⁵ See, Title 15 U.S.C. § 57, the Interstate Horseracing Act.

arguments in the WTO proceeding, the discriminatory treatment claim ultimately succeeded, both at the initial level and in the Appellate Body.⁶

As a result, the United States was found to be in substantial non-compliance with its GATS treaty, and was given a period of time to correct the problem. Instead of taking any steps to open the door to offshore betting, the United States increased its hostility level towards online gambling, by initiating additional prosecutions against BetonSports.com, and others, and even charging industry service providers, such as NETELLER ^® with money laundering.⁷ As one might imagine, such actions did not make Antigua happy, and put the United States at risk of substantial sanctions from the WTO. So, in an unprecedented move, the United States decided to withdraw its market access commitment – covering gambling – from the schedule of services it negotiated in the GATS treaty. In short, the United States essentially said that it would not play by the rules anymore.

While technically, the United States is permitted to withdraw its commitments in this manner, doing so exposes a country to compensation claims by other WTO members for lost trade opportunities resulting from the withdrawal. Any WTO member can seek financial compensation from the United States, if it can prove losses resulting from the withdrawal of commitments. In addition, Antigua is also considering its own retaliation against the United States by suspending its concessions and commitments under the “Trade Related Aspects of Intellectual Property Rights Agreement.” This important agreement protects intellectual property rights, such as copyrights and patents relating to pharmaceuticals, as well as the software and entertainment industries. Ultimately, Antigua could become a haven for the distribution of pirated DVDs and website content. Given the global reach of the Internet, Antiguan companies could compete with existing media outlets for United States customers by offering V.O.D. and other media delivery systems, containing bootlegged material. There may be little that United States webmasters – or the United States Government for that matter – can do to enforce their intellectual property rights against a country who has suspended its agreement to recognize those rights. Other industries are sweating out this issue as well, as pharmaceutical makers depend heavily on their patents to exclude competing generic brands, in order to maximize profit and recovery of research and development funds. Hollywood filmmakers and mainstream musicians are exposed as well.

All this may be the result of the stubborn insistence of the United States Government on protecting the gambling monopoly currently held by the brick and mortar casinos in Las Vegas and elsewhere. Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA) last year, despite the fact that over 85% of American citizens believe that the government should not restrict online gambling.⁸ The UIGEA was the last gasp of a soon-to-be-ousted Republican Congressional majority that attempted to preserve its position by pandering to family values groups on the Internet gambling prohibition, as well as other hot button issues, like prohibition on gay marriage and stem cell research. Their strategy failed, but the country is left with the

⁶ World Trade Organization, “United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services: Report of the Appellate Body,” (April 7, 2005).

⁷ US v. Lawrence, et. al., Case No: 1:07-cr-00597-PKC (S.D. NY 2007).

⁸ Zogby International Poll: 87% believe online gambling is a personal choice which should not be banned; Wall Street Journal Poll: 85% oppose government prohibition of online gambling.

consequences of their actions. Ultimately, this misguided effort to prohibit one form of gambling entertainment activity may result in a disaster for a wide variety of United States’ industries reliant upon international enforcement of intellectual property rights.

Some light exists at the end of the tunnel, however. Representative Barney Frank (D- Mass) has introduced legislation that would allow United States and foreign companies to obtain licenses to conduct online gambling, and offer those services to United States customers.⁹ Representative Wexler (D-FL) introduced a bill that would exempt poker from the definition of “gambling,” allowing online poker rooms to again serve United States’ customer demands.¹⁰ These baby steps may ultimately take the U.S. to a place of compliance with WTO rulings, or at least allow a settlement to be achieved with Antiguan authorities. For now, oddly enough, the fate of the adult Internet community may well be tied to the fate of the online gambling industry.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 45 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

GIVE ME LIBERTY, OR GIVE ME DEATH

By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters www.FirstAmendment.com

Would any adult industry participant be willing to die for the privilege of continued involvement in the adult industry? Doubtful, but that’s exactly the penalty that faces accused Iranian distributors and producers of websites in which pornographic works appear.¹ Although the Bill imposing the death penalty must still be approved by Iran’s Guardian Counsel, it appears sure to pass, since it was overwhelmingly approved, 148 to 5, in Iran’s Parliament.

Paying the ultimate price for participating in ones occupation of choice seems somewhat barbarian in our “civilized” society, but some of those involved in the United States’ adult industry have come close. Reports have surfaced over the years of parents loosing custody of their children as a result of their appearing in, or producing adult films.² Our firm has assisted some of these individuals in educating the court as to the constitutionally-protected nature of their commercial erotic activity, but the prejudice remains. Participants in the “porn” industry continue to be vilified by angry ex-spouses, conservative politicians, and power-hungry lawmakers.

We are now entering a new phase of obscenity prosecution where real individuals will pay a hefty price to defend the rights of others to engage in free expression. Karen Fletcher,³ Ray Guhn,⁴ Max Hardcore,⁵ JP Distributors, ⁶ and MoviesByMail.com⁷ are all facing state or federal obscenity charges as a result of their involvement in some form of commercial erotica. While they do not face the death penalty, any defendant dragged through an obscenity prosecution faces potential personal and financial ruin. Suddenly, your former “friends” and business acquaintances don’t want to have lunch with you because you may be “under surveillance.” They express concern about being dragged into court as a witness. Your family starts to wonder whether your protestations of innocence can really be believed. “He must have

¹ L. Haines, “Iran Approves Death Penalty for Pornographers,” TheRegister.co.uk (June 13, 2007), which can be viewed at: http://www.theregister.co.uk/2007/06/13/iranian_bill/.

² E.g., Anderson v. Anderson, 736 So.2d 49, 53 (Fla. 5^th DCA 1999)(reversing child custody determination based, in part, on live-in boyfriend’s operation of pornographic website business).

³ C. Deitch, “Dirty Words,” Pittsburgh City Paper (May 10, 2007), which can be viewed at: http://www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A30196

⁴ M. Kernes, “ews Analysis: It’s People vs. Freeman, Florida Style,” AVN.com, which can be viewed at: http://avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=270764.

⁵ S. Javors, “Max Hardcore Indicted on Obscenity Charges,” XBiz.com (May 31, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23329.

⁶ M. Kernes, “Attorney Says Justice Dept. Sold Same ‘Obscene’ Material As His Client,” AVN.com (March 16, 2007), which can be viewed at: http://avn.com/index.php?Primary_Navigation=Articles&Action=View_

Article&Content_ID=285692.

⁷ S. Javors, “Feds Charge MoviesByMail.com Owners With Selling Obscene Materials,” (June 14, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23606.

done something, or they wouldn’t be prosecuting him,” goes the popular refrain. Your income stream is usually halted – whether from a decision to avoid further involvement in the adult industry out of legal concern – or as a result of governmental seizure and forfeiture orders. It becomes hard to pay your employees when your payroll account is frozen. Same goes for your defense counsel. The government knows that the best way to win these cases is to make sure that the defendants are forced to turn to the public defender, instead of a competent First Amendment attorney. Sometimes that can be accomplished by impoverishing the defendant prior to a finding of guilt. Sometimes, that little ploy backfires, and certain lawyers will put aside their financial needs for a time, and take on those cases for a reduced fee, or even pro bono. Other times, the government simply picks defendants who do not have sufficient funds to afford high-end legal counsel. Case-in-point: Karen Fletcher and Max Hardcore. Fortunately,

however, attorneys have stepped forward to represent both those individuals despite the apparent lack of substantial defense funds.⁸

One must wonder, in this age of uncertainty, how many potential defendants would choose to stand and fight, if selected for an obscenity prosecution. This undoubtedly would be an excruciatingly difficult decision, given the personal risks to liberty and finances in the event of a negative outcome. The adult industry has been blessed with a number of freedom fighters who have chosen the path of most resistance over the years, in order to make law for the rest of the industry to enjoy at their leisure. Legends like Larry Flynt, Phil Harvey, Joe Redner, Al Goldstein, and others, give hope to an industry in the crosshairs of the government. Some targets will certainly plead guilty to avoid a fight,⁹ and even give up information on friends and associates, to reduce personal penalty. Perhaps that is human nature. But as obscenity prosecutions are on the increase, each and every business man and woman in the industry needs to reflect on what he or she will do if caught in the crossfire. The time will come in the not too distant future where the industry will desperately need its next freedom fighter. The courts have yet to rule on some of the key legal issues affecting modern freedom of speech – particularly in the online space. While it is often tempting to avoid conflict with those who can do you harm, a time for valor is upon us, and anyone reading this article may be put in a position of establishing constitutional precedent for decades to come. This is not an industry for the faint of heart, or those looking to make a quick buck with no risk. The risks were evident from the start.

Some of our world’s citizens create adult videos under the threat of death. While defendants in this country do not face death (yet) if convicted, the same cannot be said for cherished constitutional rights, which hang by a thread pending the outcome of current obscenity prosecutions. Who will be next to demand liberty and freedom at all costs?

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients

⁸ Karen Fletcher is being represented on a pro bono basis by the author’s law firm, Weston, Garrou, DeWitt & Walters – specifically by John H. Weston, Jerry Mooney, Derek B. Brett, and Lawrence G. Walters, along with Warner Mariani of Pittsburgh, PA. Max Hardcore is being represented at reduced rates by Jeffrey Douglas and Jamie Benjamin, two respected FALA members and obscenity defenders.

⁹ The industry saw an unfortunate guilty please recently in the case involving the Pheromoans retail store owners, who pled guilty to obscenity violations in connection with the sale of classic adult videos like Deep Throat and

Devil in Miss Jones. A. Winter, “Va. Sex Shop Owners Plead Guilty to Obscenity Charges,” XBiz.com (June 18, 2007), which can be viewed at: http://www.xbiz.com/news_piece.php?id=23639.

involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

Sex, Lies and Videogames

By: Lawrence G. Walters

Weston, Garrou, DeWitt & Walters

www.GameCensorship.com

© Lawrence G. Walters, Esq. (2006). All rights reserved.

Introduction

It has been said, “Censorship is the bastard child of technology.” Technological advances in video gaming software have created a rapid evolution from 1970’s arcade game technology to today’s role playing games, featuring an almost life-like level of realism, which mirrors the natural world in all of its graphic violence and sexual activity. In tandem with electronic gaming’s rapid evolution and realism has been a meteoric rise in popularity and revenues which now rivals that of the motion picture industry.¹ This tremendous growth and change has also spurred protest from family values groups. The fact that violence, sex, and videogames seem to play well in the media has brought out a fair number of lawmakers, eager to prove their “family values” mettle by answering the call that something be done at the legislative level to control access by minors to this increasingly violent and sexually-explicit game content.

This article will explore the current efforts to control dissemination of graphic videogames at both the state and federal levels, and will discuss how such efforts have fared in the courts. This study will then give the reader an evaluation of the industry’s future, and some suggestions as to how parental concerns can be balanced with the rights of game developers.

The Reality of Virtual Reality

Videogames have evolved from the primordial “Pong” to modern virtual reality in a relatively short time. As the little green aliens on the screen began to take on more lifelike characteristics, games started to deal with increasingly adult themes. Videogame developers were no longer hindered by the perception that “videogames are for kids,” and they began to embrace the “darker” side of human activity. Today’s games fascinate, terrify, repulse, and sexually arouse users with such intensity that some claim that it threatens the ability of users to separate fantasy from reality.²

Online role playing games such as Second Life^®™ allow users to create a virtual alter ego, and engage in the entirety of human activity, from land acquisition to dating – from sex to serial killing. It is only a matter of time before game developers will begin exploring deeply taboo subjects, such as pedophilia, incest, or rape. This potential has the videogame industry stepping back to ask itself whether any content boundaries exist, or if free expression rights should allow for examination of all these topics. At a recent sex and videogames conference, developers, attorneys, and sex therapists queried whether some degree of voluntary industry regulation would be appropriate in order to ward off government censorship. ³ Opinions vary widely on this issue, and consensus appears to be elusive. The certainty is that videogames are destined to reflect elements of the human condition never contemplated by the developers of the innocuous Pong, and some backlash is likely to result.

Previous Legislative Attempts

Already, six states have passed bills that restrict the sale of violent or sexually-explicit videogames.⁴ Similar bills are pending in several others.⁵ Fortunately for the videogame industry, the courts have thus far been uniformly protective of the game developers free expression rights, and have struck down these laws on First Amendment grounds. Importantly, the courts have unanimously held that videogames constitute protected “speech” under the Constitution, particularly given the extensive themes and artistic/literary content included in modern games.⁶

State lawmakers have struggled to define what constitutes a “violent” videogame, and how such determinations should be made. Some have focused on specific acts of violence towards police officers, while others have attempted to use a modified “obscenity” test; focusing on whether the game has serious literary, artistic, political, or scientific value with respect to what is appropriate for minors.⁷ However, First Amendment jurisprudence dictates that the government may only regulate the sale and distribution of erotic, as opposed to violent, media. Only when an expressive work crosses a certain line of eroticism will the courts approve restrictions on otherwise protected speech.⁸ This counterintuitive dichotomy has served to frustrate many legislators, and their attempts to restrict the sale of violent videogames exclusively to adults have met with crushing defeats in the courts.⁹ It is unlikely, however, that this string of legal victories will continue unbroken. At some point, lawmakers will find the “sweet spot” of regulation, and pass a law that will be upheld.

Case Law

The first case to recognize the constitutional protections afforded to videogame content was Interactive Digital Software Association v. St. Louis County.¹⁰ The case was initiated as a challenge to St. Louis County’s ordinance restricting the sale of violent videogames to minors. After denying the industry’s motion for summary judgment, the District Court dismissed the complaint and upheld the Ordinance’s constitutionality. The Eighth Circuit Court of Appeals reversed, on the grounds that the Ordinance violated the First Amendment.¹¹ The Appellate Court focused on the fact that the county attempted to restrict access to violent videogames based specifically on their content, along with the alleged harms potentially befalling those who play them.¹²

Where laws seek to regulate speech based on content, the courts are bound to analyze the laws under a very stringent method of legal review known as “strict scrutiny.” Under this test, the government bears the heavy burden of demonstrating that the law is justified by a “compelling governmental interest,” and that the least restrictive means have been used to achieve the interest.¹³ The strict scrutiny test has been the downfall of numerous videogame laws, given the inability of the state governments to demonstrate any actual “harm” resulting from violent videogame play, as would be necessary to satisfy the state’s initial burden. In case after case, the state or local government seeking to justify the videogame restriction failed to come forth with any convincing evidence demonstrating that playing videogames causes any discernible harm to either children or adults.

In the next legal challenge, Video Software Dealers Assn. v. Maleng,¹⁴ the plaintiffs, including an industry trade association, challenged the State of Washington’s ban on selling violent videogames to minors.¹⁵ The Washington statute prohibited only violence against a “public law enforcement officer.”¹⁶ In attempting to justify the law, the State attempted to argue that the violent content regulated by the law fell into the category of “obscenity” and was “harmful to minors,” under existing legal standards. However, the court rejected the invitation from the state to expand the definition of “obscenity” or “harmful materials” to include violence.¹⁷ In addition to faulting the government for failing to establish a sufficient governmental interest in regulating violence, the court invalidated the law based on the fact that it was unconstitutionally vague, in that it failed to precisely identify the range of videogames the State sought to regulate.¹⁸

Later challenges met with a similar fate: The State of California passed Cal. Civil Code § 1746, restricting the sale of violent videogames, and requiring that the games carry a particular label identifying them as such. The content regulated under the Act involved any depictions of “killing, maiming, or assaulting of any image of a human being.”¹⁹ The District Court threw out the law, holding that while the Statute was not unconstitutionally vague, it likely violated the First Amendment due to the government’s failure to establish a compelling state interest in protecting minors from violent videogame content.²⁰

Illinois jumped into the fray, passing a statute prohibiting the sale of violent and sexually-oriented videogames to minors, requiring forced labeling, prohibiting self-checkout procedures, and requiring warning signs near points of sale.²¹ In ruling on the Entertainment Software Association’s Motion for Preliminary Injunction against the law, the court noted that the State did not submit sufficient proof that violent videogames incited lawless action, aggressive behavior, or “brain damage” (as alleged by the State).²² The court ruled that the State’s ability to regulate violence is limited to media inciting imminent lawless action.²³ However, the State’s mere desire to censor violent videogame content was insufficient to support a legitimate governmental interest, as required to support the legislation.²⁴ A similar ruling resulted from the First Amendment challenge to Michigan’s violent videogame legislation, which was enjoined in November 2005, on First Amendment grounds.²⁵

As a result of these legal (and other) challenges, it is now well-established that modern videogames are entitled to full First Amendment protection. This is significant since regulations impacting speech based on its content are presumed to be unconstitutional, and governed by a completely different set of legal rules and principles than legislation impacting just about any other topic. Consistently, state and local governments have faltered when attempting to establish a causal link between videogame violence and real world aggression – particularly in children. The anecdotal observations by sociologists and psychologists in this regard have thus far been insufficient to justify a ban on the sale of expressive materials, even to children.

What does the future hold?

The losses in court have not dissuaded censorship advocates from encouraging lawmakers to keep trying to pass these laws. For example, state lawmakers worked with one well-known anti-gaming figure to develop a Bill prohibiting the sale of violent videogames to minors in Louisiana, which cleared the state’s legislature in June, 2006. However, a federal court quickly intervened and entered a Temporary Restraining Order barring its enforcement.²⁶ Similar efforts continue in Florida, Utah, Maryland, Virginia, and Oklahoma. Nonetheless, any attempt to equate violence with explicit sexuality will likely be rejected by the courts, given the clear distinction recognized by established judicial precedent.

A. Sexually Oriented Regulations

Undoubtedly, lawmakers will learn from their failed efforts in the courts, and attempt to tweak both their legislative and judicial strategies. One strategy may be to focus only on sexually-oriented video game content. Efforts to restrict erotic videogames may receive a much warmer reception in the courts given the historical precedent referenced above. However, the continued viability of these arguments is not a sure thing. In 2004, the United States Supreme Court rendered its decision in Lawrence v. Texas²⁷ wherein the Court invalidated the nation’s anti-sodomy laws. The rationale used by the Court for its decision is important, and may lay the groundwork for a change in the approach to legislation based on enforcement of a “moral code.” The majority of Justices in that case found that the government’s interest in enforcing morality can no longer justify legislation affecting fundamental freedoms.²⁸ In fact, this revolutionary decision caused Justice Scalia to lament the potential demise of all laws premised on morality, such as those prohibiting prostitution, bigamy, bestiality, and importantly: obscenity.²⁹ Although one district court picked up on this concern, and struck down the federal obscenity statute based largely on Lawrence v. Texas,³⁰ that decision was later reversed by the Third Circuit Court of Appeal.³¹ The full impact of the Lawrence v. Texas case is not yet known, however, the winds of constitutional change may be blowing in favor of erotic expression.

B. Violence Regulations

Some change could be in the works regarding how violent content is addressed by the courts as well, but that change may be detrimental to the videogame industry. As mentioned above, in striking down previous regulatory attempts to date, courts have largely relied upon the lack of evidence of “harm” allegedly caused by videogame violence. However, family values groups are focused on generating scientific evidence to justify restrictions on violent videogames, particularly with regard to consumption by minors. These groups realize that the courts will not “rubber stamp” legislative attempts to restrict access to videogames just because some county council or state legislature thinks it’s a good idea. Moreover, the government will be unable to meet its censorship burden by simply calling some hack psychologist or scientist to the stand to testify as to anecdotal incidents of violent behavior by teens after playing certain videogames. The censors have learned that “real” evidence is required, if the courts are to begin taking their arguments seriously. The industry can therefore expect to see mounting evidence in the form of studies suggesting a link between real world violence, and exposure to violent videogames. The initial studies are starting to come out.³² To the extent that these studies are not discredited – either by challenging their conclusions or their methodology – the government may begin achieving more success in the courts, when seeking to justify violent videogame legislation.

C. A Call to Arms

This should be a call to arms for the videogame industry. A substantial knowledge bank must be generated by the industry’s trade groups and leaders, on the issue of whether videogames impact the real world behavior or attitudes of players. Moreover, the opposition’s studies and testimony must be critically evaluated and publicly discredited, where appropriate. Widespread dissemination of this industry-sponsored information should occur, to help educate the public.

D. The Court of Public Opinion

Of course, the battles in the courts are only part of the equation, and will never ultimately resolve the issues. This battle between censors and proponents of free expression must be waged and won in the court of public opinion as well. Only when the impetus for passing videogame restrictions dries up, will the legislative and legal battles cease. While certain conservative factions will mount objections to violent or sexually oriented videogame entertainment forever, the majority of lawmakers’ constituencies can be educated as to the fallacy of the censors’ arguments. Current evidence utterly fails to establish causation between real world violence and videogame consumption. While proponents of regulation will point to occasional cases of violent outbursts sometime after an individual played a violent videogame, the fact that the media consumption occurred before the violence does not mean that the violence occurred because of the media intake. It would be just as reasonable to assume that playing a game of basketball causes violent behavior, if the individual played basketball before the violent outburst occurred. The public will respond favorably to truthful information about videogame consumption.

E. Working with Parents

In order to protect its own interests, the videogame industry must learn to work with parents who desire to shield their children from violent or sexually-explicit videogames. While the ultimate responsibility falls on the parent, a climate of cooperation must be fostered by the industry to facilitate implementation of each parent’s decision on behalf of their children. Insufficient and/or misleading game ratings, hidden content, media intake, and questionable marketing activities directed toward children will only lead to an adversarial relationship between videogame distributors and the nation’s parents. This will, in turn, lead to more legislative attempts to ban violent and/or sexually-oriented content, forcing an endless round of legislation and litigation. To break this cycle, the videogame industry must collectively ask itself how it can empower parents with sufficient information about videogame content to allow informed purchasing decisions at the point of sale – whether that is a retail location, or via Internet download. It must also re-double its efforts to avoid inappropriate marketing of mature-rated games to children, or through venues populated by minors.

While game-makers view publication of videogames as a right, the government sees it as a privilege – a privilege that the government will be all too happy to take away for political gain. While the courts afford a last line of defense, the videogame industry should heed parents’ calls to review marketing practices, effectively label content, and voluntarily regulate point of sale activity before the government finds a way to take control.³³

Conclusion

As videogames become ubiquitous in American homes, and as the generation that grew up on modern videogames becomes parents themselves, attitudes will change and conservative hysteria will hopefully be relegated to amusing background noise. However, the videogame industry must become active in protecting its own collective interests to mitigate any damage that could occur before attitudes calcify. Media outreach, governmental relations, symposiums, and other visible efforts to educate the public are critical at this unique juncture in the videogame industry’s development. This will drive a wedge between reasonable parents and hysterical censors. If the videogame industry speaks for parents along with children, and is perceived as their ally, the elements of censorship will be left with no support.

Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, DeWitt & Walters, www.FirstAmendment.com. He has been practicing for over 18 years, and represents clients involved in all aspects involved in the video gaming industry. He recently launched www.GameCensorship.com to serve as a clearinghouse for information relating to videogame censorship efforts. Nothing contained in this article constitutes legal advice. Please consult with your personal attorney regarding specific legal matters. Mr. Walters can be reached at Larry@LawrenceWalters.com, or via AOL Screen Name: “Webattorney.”

 

THE TRUTH ABOUT OBSCENITY LAW

Substantial misinformation has circulated about the issue of obscenity law and compliance guidelines. This handout is designed to call the readers’ attention to some simple truths about the concept of “obscenity,” and how the issue is handled in the courts. Nothing contained herein should be considered legal advice. Please consult your own personal attorney on specific legal questions. The author can be reached atLarry@LawrenceWalters.com.

1. “‘Pornography” is protected speech. “Obscenity” is illegal.” True. Significant confusion surrounds this issue, and the press often confuses these two terms. “Pornography” is a lay term generally used to describe sexually-explicit media. All such media is presumed to be protected by the First Amendment to the United States Constitution, unless and until declared obscene by a judge or jury at a final hearing. “Obscenity” on the other hand, is a legal term used to describe material that meets the “Miller Test” established by Miller v. California, 413 U.S. 15, 93 S.Ct 2607, 37 L.Ed.2d 419 (1973). Although various nuances exist in state statutes, the Miller Test can be boiled down to the following:

Obscene means the status of material which: (a) the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) depicts or describes, in a patently offensive way, “sexual conduct” as specifically defined by law; and, (c) taken as a whole, lacks serious literary, artistic, political, or scientific value.

2. “Nudity, without sexual activity, cannot be declared obscene.” False! The obscenity laws apply to depictions of sexual activity as well as the “lewd display of the genitals.” This is different than the scope of materials covered by Section 2257, which governs to records keeping and labeling. That law applies to “actual sexually-explicit conduct,” which is generally boiled down to penetration, masturbation, bestiality, or S&M conduct. The scope of materials that can be

declared obscene is much broader than the scope of materials which requires 2257 compliance. Our firm has defended images depicting even simple nudity against obscenity charges.

3. “Mixing in some famous literary quotes with hard core material will prevent an obscenity charge.” False! While obscene materials are evaluated “as a whole,” to determine whether they lack serious literary, artistic, political, or scientific value, the courts have held that a stray quote from Volatire or Shakespeare on the pages on an otherwise obscene work will not provide a defense. In order for literary material to be considered in the obscenity analysis, it must be integrated and related to the overall theme of the sexually-explicit materials. The advice of an experienced attorney is critical on this issue.

4. “If other webmasters are distributing similar content, I will be safe from an obscenity prosecution.” False! Prosecutors can pick and choose their defendants. The mere fact that many people are violating the law does not mean you have a defense to distribution of obscene materials. Each case is viewed independently. Remember, some content originates from overseas, and therefore may be subject to a different standard than content published in the United States. In addition, the community standards differ from region-to-region. Therefore, the availability of similar materials on the Internet should not be looked to for guidance in content risk analysis.

5. “If adult bookstores in my area are selling similar content as my website, I am in the clear.” Maybe. Some courts will allow defendants to introduce “comparables” in proving the nature of local community standards in an obscenity case. However, judges are not required to do so. Often, judges will exclude such evidence. Moreover, the mere availability of materials in a geographic location does not mean they are “accepted” as required to establish community standards. Proving acceptability requires information such as sales records or consumption statistics.

6. “I can only be charged where my business is located, or where the website is hosted.” Wrong! The federal government takes the position that defendants in obscenity cases can be charged in any location where the content originates from, passes through, or is received. There is some support for this position in the courts. U.S. v. Thomas, 74 F.3d 701 (6^th Cir. 1996). Therefore, a defendant in an obscenity case may be charged in a jurisdiction where he or she never anticipated defending the materials. Given the current inability to block specific geographic locations from receipt of website materials, this presents a

significant problemforwebmasters. Therefore, you should consider the needtodefend your content in any location in the United States of America.

7. “Obscenity charges are usually just misdemeanors.” False! While some states treat the retail sale of obscene materials as misdemeanor offenses, operating an adult website can result in felony charges relating to wholesale promotion of obscene materials, distribution of obscene materials across state lines, and/or racketeering. Felony obscenity charges can carry drastic consequences, including decades in jail, six figure fines, and forfeiture of all business assets related to the adult website.

8. “The government has to give me fair warning and an opportunity to remove the materials before charging me with obscenity.” Wrong! No notice is required, and webmasters can be physically taken into custody on obscenity charges without any prior knowledge of the investigation.

9. “The government must at least prove that the defendant knew the materials were obscene, right?” Wrong! The courts typically only require that the government prove the defendant had knowledge of the “nature and character of the materials,” not that they were obscene. Therefore, if you know that you are distributing sexually-explicit materials, the government will likely be able to meet its burden in this regard. The question of obscenity is purely a matter for the jury to decide. Obscenity defendants usually have no idea whether they are innocent or guilty, until the jury returns a verdict.

10. “The First Amendment provides a defense to obscenity cases though, correct?” Sort of. Obscene materials are not protected by the First Amendment. They fall within an exception to the First Amendment’s protections, like defamatory speech and national security threats. However, your lawyer can argue that the materials are not obscene, and therefore protected by the First Amendment. But once the materials are found to be obscene, they no longer enjoy First Amendment protection, and are treated as contraband, just like drugs, gambling devices, or automatic weapons.

11. “Only the owners, or day-to-day managers of a website operation can be charged with obscenity.” False. First, any individual or company up the chain, from production, through distribution, to retail sale, can be charged with obscenity violations. Only the end user, in the privacy of his or her own home, is safe from obscenity threats, due to the right of privacy. In addition, the government often seeks to indict as many individual participants in any particular case, as they can legitimately get away with. This usually includes webmasters, designers, assistants, spouses, bookkeepers, managers, owners, operators, consultants, and any other individual with virtually any degree of decision making authority. The idea is to compel underlings to provide favorable testimony against more important figures to the operation. Often this becomes a race to the prosecutor’s office, with many co-defendants seeking to be the first to obtain an immunity deal and turn “State’s evidence.” Sometimes, criminal charges are only threatened, and never pursued, in exchange for an agreement to provide favorable testimony. What will the people in your organization do?

12. “There is no way to protect myself from obscenity charges.” False! Educating yourself on the legal issues, with the help of a competent attorney, will allow you to identify your personal comfort zone or risk tolerance level, given previous prosecution trends. Lawyers skilled in this area can quickly review content and advise whether it is out of the mainstream of current defensibility, or within reasonable risk levels. In addition, a good attorney-client team can generate “valuable” content to be integrated into the sexually-explicit materials, in the hopes of providing a potential defense in terms of literary, artistic, scientific, or political value, for the work at issue.

13. “My chances of being charged with obscenity are astronomically small.” Probably right. Given the vast number of adult websites published on the web at the current time, any given webmaster’s chances of being selected for an obscenity prosecution are remote. However, the stakes are too high, to leave this issue to chance. The likelihood of being targeted for obscenity can be reduced, with proper planning, and the chance of conviction can be likewise reduced by implementing proper legal advice. Practical issues should be addressed as well, like forming a relationship with a bondsman, engaging a private investigator, and establishing a war chest to fight the government if your day to be a freedom fighter comes.

THE END OF THE AGE OF INNOCENCE

– AND THE BEGINNING OF RESPONSIBLE AGE VERIFICATION

By: Lawrence G. Walters, Esq.

Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

Introduction

Why worry about age verification? “That’s the parents’ job.” “What right does the government have to force me to protect children?” “There is no law in the United States requiring online age verification.” “Age verification devices do not always work, and cost too much.” “They interrupt our traffic flow, and cause us to lose sales.”

The same arguments have been repeated over and over in an effort to avoid implementation of functioning age verification online. However, the era of the adult website without age verification has come to an end. The adult Internet industry has matured to a level that requires acceptance of responsibility for age verification of end users. Adult webmasters can no longer avoid the issue based on the misinformation and excuses that abound in the industry.

New legislation is pending that would require all adult websites to implement a form of age verification approved by the Federal Trade Commission (FTC).¹ A “black list” of noncompliant websites would be created for some unstated purpose.² Credit card processors would only be permitted to service adult websites that incorporated some approved form of age verification.³

This bill is clearly a reaction to the dismal age verification efforts previously undertaken by the adult Internet industry. Unless webmasters decide to take this issue seriously, and adopt a high level of voluntary compliance on their own, the government will be more than happy to provide mandatory compliance requirements which will dramatically impact the ability of U.S. adult webmasters to compete in the worldwide marketplace.

Each of the other mainstream media industries figured this out on its own, before it was too late. The Motion Picture Association of America (MPAA) quickly adopted a ratings system for Hollywood movies to avoid government censorship. The video game industry adopted an even more complex and descriptive ratings system for games with violent or sexually-oriented themes.⁴ The mainstream music industry came close to mandatory warnings and labels before it

¹ Internet Safety & Child Protecton Act of 2005, S. 1507.

² Id. at §103(2).

³ Id. at § 102.

⁴ See: ESRB.org

voluntarily agreed to adopt an explicit lyrics warning system on its own.⁵ These industries recognized that some degree of voluntary compliance was essential to stave off mandatory legislation. Family values groups and conservative lawmakers will always seize the opportunity and utilize an industry’s failure to address child protection issues as a means to garner support, increase donations, and rally their base. The adult Internet industry is a sitting duck for this kind of political shenanigan. While the issue of how to deal with access by minors to adult material online is a complicated one, it must be addressed immediately if the adult Internet industry is to continue enjoying the level of success and free reign that it has experienced over the last decade.

Recent statistics, reported to lawmakers, on access by minors to adult material are shocking, and will certainly motivate Congress to address the problem in the absence of immediate, substantial, voluntary compliance by the industry. For example, researchers allege:

• Only 3% of adult websites require age verification beyond the honor system.

• The largest group of viewers of explicit materials is children between 12-17 years old.

• 74% of adult websites display “free” content.⁶

Statistics like these, while certainly subject to debate and questions about their accuracy, will be accepted as gospel truth by the average citizen, who is fed up with receiving multiple hardcore spam emails every day in their inbox. Irresponsible promoters and affiliates who disseminate such materials are causing immense harm to the vast majority of otherwise responsible, ethical webmasters who seek to scrupulously avoid child customers. While the American lawmakers will not be able to have any impact on foreign webmasters or affiliates who are not subject to United States law, the responsible American webmaster must lead the way by implementing creative, viable, age verification, before any access is provided to sexually-explicit materials. Such efforts may head off governmental efforts to impose age verification requirements that are not realistic, functional or practical for the webmaster trying to compete in the global marketplace.

But what about the issues raised in the first paragraph of this article? Let’s take them one

by one:

Parents Should Protect Children From Adult Media

While it is easy to attempt to shift the obligation to protect children from exposure to inappropriate materials away from the webmaster, and toward the parents, such is not a viable option in the current social/political climate. Indisputably, parents must act as the final gatekeeper when it comes to exposure to any form of information or media. However, billion dollar industries, such as the adult Internet, take on a certain level of responsibility to protect their vast potential audience from age-restricted materials or services. This expectation is fueled partly by the substantial revenues available (or perceived to be available) in the industry. But the obligation also stems from the use of a public communication tool upon which the average citizen is becoming more and more dependent for everyday activities. Just as the airwaves are held in the “public trust” by radio and television stations, in exchange for their agreement to

⁵ The effort organized into a group known as the “Parents Music Resource Center.”

⁶ The Porn Standard, www.thirdway.com (2005)

honor a certain code, there is a perceived obligation on the part of those utilizing the Internet to communicate or distribute commercial goods, to honor a similar implied code of good faith and fair dealing. Failure to honor that code by the adult Internet industry will result in a public backlash.

While most Internet users do not inadvertently become exposed to adult materials online, the rampant exposure to adult-oriented spam email, along with the common use of misleading domain names redirected to adult websites, has resulted in increased accidental exposure to sexually-explicit materials by both adults and children. The public has had enough, and demands some form of voluntary compliance or governmental regulation to deal with this issue. Thus, while we can all agree in principal that parents have the primary obligation of protecting children from exposure to explicit materials, or anything else that they do not want their children to view, the freedom to use the Internet as a tool for profiting from the distribution of erotic materials brings with it socially-imposed responsibility to ensure that age restricted materials are directed at, and consumed by, the appropriate audience.⁷

“Age Verification Does Not Work”

There can be no dispute about the fact that online age verification has not reached a level of perfection. Underage users will inevitably break through any form of age verification currently on the market. Pending developments in biotechnology will ultimately allow websites to screen users by retina imaging, fingerprints, or bone mass scans. However, the level of advancement that has been achieved thus far should not constitute a reason for failing to implement one or more forms of age verification. Neither the government, nor society, demands perfection in this regard. Minors regularly purchase alcohol and cigarettes; yet these products continue to be available on a widespread basis. Should legislation like Representative Lincoln’s Bill, described above, become law at some point, the approved forms of age verification that webmasters must implement will not be 100% perfect, either. However, what is expected by society, and the government that represents it, is some good faith attempt to exclude minors from adult websites.

Most state laws that forbid the sale of pornography to underage individuals contain a “safe harbor” defense, allowing retailers to escape prosecution if they undertook some good faith effort to prevent the sale of age restricted media to minors. This can be something as simple as requiring the clerk to retrieve such items, or enforcing a strict policy of requiring identification from persons who appear under the age of thirty. While none of these efforts will prevent all minors from getting their hands on a copy of Hustler or Penthouse in the brick-and-mortar world, society is prepared to accept some degree of imperfection so long as reasonable efforts are undertaken. Thus, while each age verification device has its weaknesses, something is better than nothing. One final note: Significant incentive exists for webmasters to be among the first to implement real age verification on their websites. Those webmasters will be in a position to argue that they are doing more to protect children from exposure to inappropriate material than the vast majority of the industry. Assuming the remaining webmasters ultimately see the light, and the industry adopts age verification in toto, this argument cannot be made for very long.

⁷ The author does not advocate for, or against, the merits of this burden being imposed on adult webmasters. This is merely an observation based on the author’s knowledge and experience.

However, there is a unique, albeit fleeting, opportunity for webmasters to set themselves apart from the norm, by implementing age verification now, before it becomes the industry standard.

“Age Verification Will Decrease Traffic & Revenues”

In the short term, the implementation of any age check device will likely have an effect on both traffic and revenue. Navigation of age verification screens conflicts with the inherent laziness of the average web surfer. Some companies that have experimented with age verification devices have indicated however, that the lost traffic falls into the category of “junk” that merely eats up bandwidth and costs more than it is worth. Whether this is true or not, the industry must come to terms with the fact that protecting minors from exposure to explicit materials comes with a price. However, in paying that price, webmasters receive significant legal protection and political benefits that are invaluable. Once age verification becomes commonplace, the costs associated with implementation of these devices will be dramatically reduced, since the end user will become accustomed to, and forced to use, some form of age verification on most adult websites. The user’s option to simply choose an alternative site without age verification will quickly disappear. On balance, though, the benefits of implementing age verification far outweigh any potential revenue or traffic losses that may be experienced. Several companies that have implemented age verification on their network of websites have reported to this author that they experienced two, three, or four fold increases in profits after doing so, despite the initial expectation of decreases. While an argument can be made that those increases could have been even higher without age verification, one criminal prosecution or civil claim, resulting from access by minors, would quickly eat up any increased profitability potentially realized by omission of an age verification solution.

“There Is No Law Requiring Age Verification”

Not true. Significant misinformation has been circulated in the adult webmaster community about this issue. Initially, almost every state has adopted a statute prohibiting the retail display or sale of sexually-explicit materials to minors. Some of the statutes specifically prohibit doing so via a computer, and others are vague in their potential scope. Some of these state laws have been struck down⁸ although most are untested in the courts. A local prosecutor with a thirst for headlines could certainly initiate a criminal charge against a website operator who fails to implement a viable form of age verification. While the courts may ultimately find constitutional problems with any given state statute, prevailing in court is never guaranteed. Moreover, as the United States Supreme Court appears to be swinging towards the conservative side, civil liberties cases will become more difficult to win.

In addition to state law concerns, it should be noted that the Child Online Protection Act (COPA) requires age verification for adult websites. Commercial websites must implement age

⁸ See: Reno v. ACLU, supra, American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005).

verification based on 1) credit cards; 2) verified passwords; or, 3) “other means” that are reasonably feasible under the current technology.⁹ While the courts have thus far preliminarily enjoined COPA,¹⁰ the case has still not been decided, and the law could still be upheld by the United States Supreme Court. The results of the pending Supreme Court nomination process may bear heavily on the outcome of this particular case when it reaches the High Court for the third time. Until then, webmasters cannot be assured that they are out of the woods with regard to COPA compliance. Moreover, the government has never promised that it will not retroactively enforce the Act against those webmasters who failed to comply while it was enjoined, assuming that the law is ultimately upheld.

In sum, both state and federal law pose potential age verification concerns for adult webmasters. Moreover, as noted above, pending legislation may soon be adopted to require use of certain forms of approved age verification by adult webmasters. To say that the law does not require age verification for adult websites is simply wrong.

Conclusion

As is evident, online age verification is about to become a reality – whether through the adoption of voluntary guidelines, or government mandate. Various online age check options are currently available, ranging from database verification to voluntary affirmation of age under the penalties of perjury.¹¹ Some combination of systems may be required, depending on the nature of the content involved, the structure of the website, and the level of compliance desired. For example, soft core free tours may require a device that is less intrusive and time consuming than a free hardcore website. Unless and until government-mandated age verification becomes a reality, compliance will be guided by the webmaster’s good faith. This good faith can pay off in the end, since functioning age verification eliminates a powerful argument for government regulation – protection of children. This theme recurs over and over again whenever the government pursues legal action against adult-oriented websites. Often, the issue of access by minors has nothing to do with the charge involved, such as in obscenity prosecutions. However, those cases are much harder to defend when the prosecution can argue that the webmaster is providing obscene materials to children. By taking away that argument, the webmaster forces the government into a pure free speech battle over censorship of erotic materials. In that way, the webmaster has dramatically increased his or her chances of success in defending just about any legal claim. In the end, the industry may do well, by doing good.

Lawrence G. Walters, Esquire, is a partner with the law firm of Weston, Garrou, DeWitt & Walters, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of the adult industry. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the

⁹ Child Online Protection Act, 47 U.S.C. § 231.

^{10 10} American Civil Liberties Union v. Reno, 217 F.3d 162, 169-170 (3^rd Cir. 2000) certiorari granted by, Ashcroft v. American Civil Liberties Union, 532 U.S. 1037, 121 S.Ct. 1997, 149 L.Ed.2d 1001 (2001), vacated by, Ashcroft v.

American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), remanded to, American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), cert. granted by, Ashcroft v. American Civil Liberties Union, 540 U.S. 944, 124 S.Ct. 399, 157 L.Ed.2d 274 (2003), aff’d and remanded by, Ashcroft v. American

Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (June 29, 2004).

¹¹ See: www.idology.com; www.electracash.com; www.aristotle.com; www.birthdateverifier.com.

United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

IN THE SECOND DISTRICT COURT OF APPEAL

CHRISTOPHER M. WILSON APPEAL CASE NO.:

LT CASE NO.: CF-05-7738

Petitioner, 10^TH Judicial Circuit, Polk County, Florida

EMERGENCY PRELIMINARY

5. RELIEF REQUESTED

UNDER SEPARATE COVER

GRADY JUDD, in his official capacity as Sheriff of Polk

County, Florida, and JERRY HILL, in his official capacity as State Attorney in and for the Tenth Judicial Circuit

Respondents.

/

PETITION FOR WRIT OF HABEAS CORPUS FROM TRIAL COURT ORDER REVOKING BOND AND DENYING BAIL

Petitioner, CHRISTOPHER M. WILSON, (“WILSON”), pursuant to

Fla.R.App.P. 9.030(b)(3), 9.100, and 9.300(c), and Fla.R.Crim.P. 3.132(c)(4),

petitions this Court for a Writ of Habeas Corpus directed to Respondents, GRADY JUDD, in his official capacity as Sheriff of Polk County, Florida, (“SHERIFF”), and JERRY HILL, in his official capacity as State Attorney in and for the Tenth Judicial Circuit, (“STATE ATTORNEY”), (collectively referred to as “Respondents”), and as grounds, states as follows:

1. BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction to issue a Writ of Habeas Corpus pursuant to Article V, § 4(b)(3), FLA. CONST. and Fla.R.App.P. 9.030(b)(3). Habeas Corpus is the proper remedy to challenge an unlawful detention pending trial in a criminal case. Glinton v. Wille, 457 So.2d 563 (Fla. 4th DCA 1984). Moreover, issues relating to the constitutionality of statutes relied upon as a basis for detention may be properly considered in a Habeas Corpus proceeding. Ennis v. Regier, 869 So.2d 701 (Fla. 2d DCA 2004). Petitioner WILSON has no other adequate remedy available to him which will prevent his continued unlawful incarceration without bail, or which will prevent additional obscenity allegations being used as a basis to

revoke future bonds.¹

2. INTRODUCTION

This case involves the incarceration of a United States citizen without bond based on the dissemination of constitutionally-protected expression which has not been determined obscene on the merits.² The Order of detention results in a prior restraint of speech in violation of the United States Constitution. The evidence

¹ To the extent that the Florida Rules of Criminal Procedure, Rule 3.132(c)(4), contemplate filing a different form of request for review of orders of pretrial detention, Petitioner requests that this Petition be considered as the appropriate Motion for review.

² All of the sexually oriented materials referenced in this Petition depict only adults; neither the depictions nor the allegations of obscenity indicate that any juveniles — i.e., persons under 18—were involved. This case is only about adult

obscenity.

supporting the bond revocation did not include the “whole” work as required under the Miller Test, and was obtained in violation of Petitioner WILSON’s Fourth Amendment rights contrary to binding precedent from this Court. Nonetheless, the Trial Court revoked Petitioner WILSON’s bond and ordered pretrial detention with no bond, without conducting a hearing on the matter, and without making any factual findings mandated by Fla.R.Crim.P. 3.132(c)(1) and §907.041, Fla. Stat. (2005). Both the underlying charges against Petitioner WILSON, and the basis for revoking his bond are premised on alleged violations of Florida’s obscenity statute, Chapter 847, et. seq., Fla.Stat. (2005), against which Petitioner WILSON has mounted various constitutional challenges – none of which were considered or resolved prior to using the law as a basis to order pretrial detention without bond.

3. FACTS

This case arises out of the operation of a website which allows individuals throughout the world to post a variety of erotic and non-sexually oriented images, video clips, and written comments on various web pages contained on the website. A 1-56; 132-133.³. Petitioner WILSON did not create any of the content displayed on the website, and does not approve the content before it is posted on the website. A 133. Nothing on the website physically “exists” in Polk County, Florida, or within the Tenth Judicial Circuit. A 132. The website is hosted in Amsterdam,

³ References to the Appendix shall be designated by the letter “A,” followed by the appropriate page number(s) of the document or item referenced.

Netherlands, and is administered by various individuals, all of whom reside outside of Polk County, Florida and outside of the Tenth Judicial Circuit. A 132.

In November, 2004, the Polk County Sheriff’s Office began an investigation into the website after the lead investigator contacted a newspaper reporter who was writing an article about the United States Military’s investigation into Petitioner WILSON and the website. A 57, 61. The website at issue sparked nationwide controversy as a result of Petitioner WILSON’s decision to allow soldiers to join the website and obtain full membership benefits by submitting images which depicted military activities from the War in Iraq and elsewhere in the Middle East. A 135. Petitioner WILSON created this procedure for soldiers who wanted to access the website by paying via credit cards, but whose credit card transactions were routinely denied, since they emanated from high credit risk countries such as Iraq or Afghanistan. A 135. Therefore, as an alternative to payment via credit card, Petitioner WILSON allowed soldiers to obtain free access to the entire website if they posted pictures evidencing their status as active military in the Middle East. A 135.

Although Petitioner WILSON did not solicit gory battlefield images, soldiers ultimately began submitting such images (hereinafter referred to as “War Images”) as proof of their active military status in order to gain access to the website. A 136.

The existence of these uncensored War Images apparently resulted in a Military investigation. A 57. Respondents SHERIFF and STATE ATTORNEY also launched an investigation into Petitioner WILSON’s website activities, during which an Investigator joined the website, www.NowThatsFuckedUp.com, as a member, and printed out eighty (80) still images and twenty (20) short movies (all exclusively sexually oriented) that Respondent SHERIFF’s Investigator, Charlie Gates, (“Investigator Gates”), determined (in his opinion) to be obscene. A 58. No warrant was obtained prior to copying the images and video clips from the website and using them in the course of the investigation. A 57-61. Investigator Gates presented the content copied from the website to the Honorable A. Cowden, Circuit Judge for the Tenth Judicial Circuit, in and for Polk County, Florida, on October 7, 2005, who issued one hundred (100) individual probable cause determinations to believe that each image was independently obscene. A 58. The website was not evaluated ‘as a whole’ contrary to the requirements of the Miller Test. A 58. Respondent STATE ATTORNEY filed three hundred one (301) separate counts of obscenity, although all materials at issue came from a single website. A 1-56; 57-59. Although Respondents deny that their investigation was prompted by, or motivated by, the Military’s concerns with the War Images, Respondent SHERIFF is sharing evidence generated in connection with this case with the Military. A 62; 232.

Based on Judge Cowden’s probable cause determinations, and the statements of Investigator Gates, Respondent SHERIFF sought and obtained an Arrest Warrant for Petitioner WILSON, charging him with one (1) felony count of wholesale promotion of obscene materials and three hundred (300) separate misdemeanor counts of distribution of obscene materials, pursuant to Chapter 847, Fla. Stat. (2005). A 1-56. Given the manner in which this case was charged, i.e. three (3) individual misdemeanor counts relating to each image selected from the website, Petitioner WILSON’s bond was set in the amount of $151,000.00. A 56. Petitioner WILSON was required to pay a bondsman $30,500.00 as a bond premium, in order to obtain release pending trial. A 1-56. He has no financial means to post an additional bond, or pay a new bond premium. A 137.

Shortly after his arrest, Petitioner WILSON moved from within the geographic boundaries of Polk County and the Tenth Judicial Circuit, into Orange County, Florida. A 132. At no time was Petitioner WILSON told to stop distributing any sexually-oriented content on the subject website by any law enforcement agent, or that continuing to do so could jeopardize his bond or pretrial release. A 134. Petitioner WILSON was not aware of any other case where the continued distribution of presumptively-protected adult-oriented material after an arrest on obscenity has been determined to constitute a violation of bail release conditions or resulted in a revocation of bond or in pretrial detention. A 130. The

unprecedented nature of this proceeding was confirmed by the Affidavit of an expert censorship attorney, who has monitored proceedings in obscenity cases for decades. A 226-230. Petitioner WILSON did not imagine, comprehend or have any reason to believe that the continued operation of his website, from outside of Polk County, would put him at risk for violating any condition of bond, or having his bond revoked or being remanded to custody pending trial. A 130.

Despite the above, on November 22, 2005, Respondent STATE ATTORNEY filed a Motion to Revoke Defendant’s Bond, alleging only that Petitioner WILSON committed new crimes in the form of distribution or promotion of additional content on the website, which Respondents alleged was obscene. A 98. The State’s Motion to Revoke Defendant’s Bond also sought pretrial detention, but contained no allegations in support of this request, concerning Petitioner WILSON’s ties to the community, financial resources, or threat of physical danger to the community. A 98.

Shortly after receiving a copy of the State Motion to Revoke Defendant’s Bond, Petitioner WILSON eliminated any and all sexually-oriented images/video from the website and prevented users from posting such images/video to the website in the future. A 130, 131. Receipt of the motion constituted the first notice to Petitioner WILSON that continued operation of his website could constitute a violation of his conditions of pretrial release, and therefore he took

these actions in an attempt to remedy the alleged violation, given his concern over pretrial incarceration. A 130-131. Petitioner WILSON was never told, in advance, that any of the “new” images at issue in the bond revocation proceeding were illegal, obscene, or otherwise problematic by anyone in law enforcement prior to the filing of the State Motion to Revoke Defendant’s Bond. A 130. After the revocation motion was filed, counsel for Petitioner WILSON attempted to obtain a clarification from Respondent STATE ATTORNEY as to what types of images/video can safely be distributed via the website without risk of additional allegations of obscenity and consequent future attempts to revoke Petitioner WILSON’s bond. A 131; 213-215. Respondents failed and refused to provide such guidance in order to assist Petitioner WILSON in complying with the law, and therefore Petitioner WILSON concluded that the only way to protect himself from future a bond revocation based on future allegations of obscenity was to remove all sexually-oriented images from the website, regardless of whether they may have serious value, or be otherwise constitutionally protected. A 131.

Petitioner WILSON testified, via his Affidavit, that none of the content at issue in this case affirmatively “exists” in Polk County, Florida, or in the Tenth Judicial Circuit. A 132. Images and video clips must be requested by an individual from the server in Amsterdam, Netherlands, and brought into Polk County to be downloaded onto a hard drive or a removable disk. A 132. The

materials are therefore not broadcast, or beamed into Polk County, like television or radio. A 132-133. Consequently, Respondents sought to revoke Petitioner WILSON’s bond based on activities occurring completely outside of their jurisdiction, by individuals other than Petitioner WILSON, with no prior warning that the images may be obscene, no request for removal, and involving a website hosted in another country. A 98; 132-33. Moreover, none of the images at issue in the bond revocation proceeding was created by Petitioner WILSON, nor did he even see them before they were brought to his attention in the bond revocation proceedings. A 130, 133. At any given time, there were over 250,000 images or video clips on the website, and the content was constantly changing. A 135.

Respondent STATE ATTORNEY scheduled the hearing on the State Motion to Revoke Defendant’s Bond for Friday December 16, 2005, and reserved only thirty (30) minutes for the hearing. A 99; 100, 103. Petitioner WILSON’s attorneys requested a continuance of that hearing on December 12, 2005, arguing that insufficient time existed to address the complex issues involved in this case in regards to a determination of obscenity, and since numerous preliminary issues such as preemption of the state obscenity statute under the Commerce Clause and recent federal legislation, the constitutionality of the obscenity statute had not been addressed by the Trial Court, despite the pendency of numerous timely filed and

briefed pretrial motions raising such issues. A 100-104. The Trial Court denied the Motion for Continuance without comment. A 111.

The Trial Court conducted a hearing on the State Motion to Revoke Defendant’s Bond on Friday, December 16, 2005. Just prior to the the beginning of argument, Petitioner WILSON filed a Verified Motion for Disqualification in order to disqualify the Judge from any further proceedings in the case based on his well-founded fear that Judge J. Dale Durrance could not conduct the necessary in- depth, visual review of the allegedly obscene materials, given a serious eyesight problem, and impending surgery to address same. A 216-222. The Trial Court denied the Motion as legally insufficient. A 223.

Petitioner WILSON, though counsel, renewed his request to continue the hearing on bond revocation, given the inadequate time, and pendency of other preliminary constitutional challenges, and that request was denied without elaboration. SA.⁴ Petitioner WILSON also filed a Motion to Strike State’s Motion to Revoke Defendant’s Bond, as legally insufficient under Florida law. A 112-117. The Trial Court never ruled on the Motion to Strike. The Trial Court then proceeded to address the State Motion to Revoke Defendant’s Bond, during which Investigator Gates sought to establish probable cause to believe that Petitioner

⁴ References to the audio recording of the proceeding on the Motion to Revoke Bond shall be designated by the letters “SA,” referencing the Supplemental Appendix containing the audio recording.

WILSON committed “new crimes” while on pretrial release, in violation of

§903.046(2)(j), Fla.Stat. (2005). In doing so, Investigator Gates adduced, over objection, printouts of thirty (30) still images, and three (3) short video clips, extracted from hundreds of thousands of images on the website at issue.⁵ Investigator Gates admitted that no warrant had been sought or issued prior to copying the images and video clips from the website. SA. Counsel for Petitioner WILSON thereafter moved to suppress and exclude such evidence based on this Court’s decision in Miragaya v. State, 654 So.2d 262 (Fla. 2d DCA 1995), holding such procedure to be an illegal seizure and imposition of prior restraint on protected speech. SA. The Court overruled the objection and denied the suppression request without comment. SA.

After additional witness voir dire regarding the nature of the images sought to be introduced, counsel for Petitioner WILSON also objected to the introduction of the images and video clips at issue based on Inspector Gates’ admission that he eliminated various textual comments pertaining to each of the images, and selected certain images out of a series or set of images, without presenting the entire set of all images and associated comments to the Trial Court as required to present the

⁵ In so much as Petitioner WILSON, for purposes of this Petition only (or for the relevant portions of this Petition only) assumes, arguendo, that a magistrate could reasonably conclude that there was probable cause to believe that the “revoking” images were obscene, when considered in isolation, Petitioner WILSON does not attach any of those images. Petitioner WILSON will provide them if requested by the Court.

materials “as a whole” under the test set forth in Ch. 847, Fla.Stat. (2005) and

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 513 (1973). SA. In

support of his objection, Petitioner WILSON referenced his previously-filed Affidavit of Defendant Regarding Comments Associated with Images, identifying a typical set of images posted by a user on the subject website, as it would appear when displayed with the associated comments. A 174-188. This Affidavit demonstrated how a set of images was portrayed on the website, and how the comments related to the set of images presented. The Trial Court overruled the objection⁶ to the failure to consider the images ‘as a whole’ and allowed the isolated images (bereft of commentary) to be considered as evidence justifying revocation. SA.

On cross examination, Investigator Gates admitted that the website was hosted in The Netherlands; that he was not aware of anyone else in Polk County who had viewed the proffered images; that Petitioner WILSON no longer resided in Polk County, that Petitioner WILSON did not create or post the images himself; that no evidence existed that Petitioner WILSON ever saw the images; and that there was no evidence that Petitioner WILSON resold or redistributed the images at issue in the bond revocation proceedings. SA.

⁶ Petitioner WILSON had also filed a Motion in Limine and supporting Memorandum, A 163-165; 120-126, arguing that the State should be precluded from introducing only portions of the website, or eliminating the associated comments.

The State presented no evidence on whether Petitioner WILSON intended to violate the bond conditions, or even whether he was aware of the nature and character of the images involved. In addition, the State failed to present any evidence of the community standards that would apply to the images at issue, or which community’s standards would apply, given Petitioner WILSON’s move to Orange County, and lack of any presence in Polk County.

Thereafter, Petitioner WILSON, though counsel, attempted to call an Expert Witness, Dr. Randy Fisher, Professor of Human Sexuality at the University of Central Florida, on the issue of obscenity, and availability of similar, comparable sexually-explicit materials within the Polk County area. Petitioner WILSON previously filed the Affidavit of Dr. Randy Fisher in Opposition to State Motion to Revoke Defendant’s Bond, in which Dr. Fisher set forth his conclusions on these issues, and opining that the images at issue in the bond revocation proceeding were not obscene, appealed to a healthy interest in sex, contained serious value, and were similar to other comparable materials readily available for purchase throughout the Polk County area. A 196-212. The Trial Court prohibited the defense expert from testifying. SA.

After final argument on the issue of bond revocation, the Court ruled that probable cause existed to find that Petitioner WILSON committed new crimes of obscenity while on pretrial release, which thereby justified his remand to custody

without bail. A 231. No pretrial detention hearing occurred. Counsel for Petitioner WILSON vigorously attempted to point out to the Court that the issue of pretrial detention had not yet been considered, and that such an issue required its own separate hearing, and evidence beyond a reasonable doubt, pursuant to Fla.R.Crim.P. 3.132(c). SA. Petitioner WILSON’s position on the need for specific findings prior to ordering pretrial detention had also been thoroughly briefed in his previously-filed Memorandum in Opposition to State’s Motion for Revocation of Pretrial Release. A 166-176. The Trial Court instructed Petitioner WILSON’s counsel to stop arguing. SA. Petitioner WILSON’s counsel then sought a stay of the Trial Court’s pretrial detention order, which the Trial Court refused to consider. SA. The Trial Court again instructed counsel to stop arguing, since the hearing was over. SA.

Petition WILSON remains illegally incarcerated by Respondent SHERIFF and subject to future bond revocation by Respondent STATE ATTORNEY based on continued distribution of website material, before trial on the merits.

3. RELIEF SOUGHT

Petitioner WILSON requests that this Court grant the following relief:

1. Issue the Writ of Habeas Corpus;

2. Reverse the Trial Court’s Order revoking bond and remanding Petitioner WILSON to pretrial detention without bond;

3. Order release of Petitioner WILSON by reinstating his original bond with instructions that no further revocation occur based on any allegations of obscenity until a final conviction is obtained on the underlying obscenity charges;

4. [REQUESTED IN A SEPARATE CONTEMPORANEOUSLY- FILED MOTION] Emergency preliminary relief pursuant to Fla.R.App.P. 9.300(c) in the form of a stay pending consideration of the petition, requiring Petitioner WILSON’s immediate release from pretrial detention, temporary reinstatement of Petitioner WILSON’s original bond, and interim prohibition against revocation of that bond based upon allegations of obscenity until this Court renders a final determination of this Petition on the merits; and,

5. Such further relief as this Court deems equitable and just under the circumstances.

3. LEGAL ARGUMENT

1. Revocation of Bond and Imposition of Pretrial Detention Results in a Prior

Restraint on Protected Speech in the Instant Case.

As more fully set forth exclusively in Petitioner WILSON’s Emergency Motion for Stay of Proceedings Based on Prior Restraint, the revocation of bond and imposition of pretrial detention based on allegations of new obscenity offenses, before any website content has been judicially determined to be obscene, results in the imposition of an unconstitutional prior restraint on protected speech.

Petitioner WILSON incorporates the arguments made in the accompanying Emergency Motion for Stay of Proceedings Based on Prior Restraint as if fully set forth herein. By way of summary, Petitioner WILSON contends the following:

1. Pretrial detention for unproven obscenity offenses is an impermissible form of prior restraint;

2. Pretrial detention for unproven obscenity offenses under the circumstances of this case will cause in impermissible chilling effect in violation of the First Amendment.

3. Pretrial detention for one or more unproven obscenity offenses is impermissible prior punishment prohibited by the First Amendment.

Since the prior restraint arguments support the granting of immediate, preliminary relief while this Court considers the balance of this Petition, those arguments are contained in a separate emergency motion.

2. The Trial Court Departed from the Essential Requirements of Law by Ordering Pretrial Detention Without Conducting a Hearing Thereon, or Considering any of the Required Factors.

Assuming, arguendo, that additional allegations of obscenity can form the basis for bond revocation in an obscenity case, without violating the First Amendment, such allegations do not, by themselves, justify pretrial detention.

The Florida Constitution guarantees:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is

evident or the presumption is great, every person charged with a crime…shall be entitle to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

Article I, Section 14, Declaration of Rights. See also, Fla.R.Crim.P. 3.131.

Elimination of this strong constitutional right to bail can only occur under the narrowest of circumstances, with attendant Due Process protections and appropriate legal burdens placed on the State. The right to bail was not observed by the Trial Court.

Determinations regarding pretrial detention are controlled by §907.041, Fla. Stat. (2005), which requires the court to conduct a separate inquiry to whether any conditions of pretrial release will protect the community from the risk of physical harm to persons. The Florida Supreme Court, in State v. Paul, 783 So.2d 1042 (Fla. 2001), considered whether a court may revoke a defendant’s bond, and order pretrial detention based merely on proof of commission of new crimes. The court held that trial courts must consider the criteria set forth in §907.041, Fla. Stat. (2005) when deciding the issue of pretrial detention, which is separate from the issue of bond revocation:

By breaching a condition of the bond originally set forth by the court, a defendant forfeits the right to continue release under the terms of that bond. However, the defendant does not forfeit his or her constitutionally-

guaranteed right to bail altogether. A refusal to readmit a defendant to any bail at all must be subject to the limitations of the pretrial detention statute.

Id. at 1050, citing Paul v. Jeanne, 728 So.2d 1167, 1171 (Fla. 4th DCA 1999); see also, Rix v. Jeanne, 728 So.2d 827 (Fla. 4th DCA 1999); rev. granted, Bland v. State, 744 So.2d 452 (Fla. 1999) and decision approved, Jeanne v Rix, 783 So.2d 237 (Fla. 2001) (granting writ of habeas corpus where state did not satisfy burden of proving requirements of pretrial detention upon breach of bond)

In light of the above, it is clear that the Trial Court departed from the essential requirements of law by incarcerating Petitioner WILSON without allowing the parties to address the requirements of § 907.041, Fla. Stat. (2005), without placing the appropriate burden of proof on the State to demonstrate the necessity for pretrial detention, beyond a reasonable doubt, pursuant to Fla.R.Crim.P. 3.132(c), and without making the required findings pursuant to

§901.041(4)(i), Fla. Stat. (2005). Counsel for Petitioner WILSON attempted to address the issue of the propriety of pretrial detention, but was prohibited from making any further argument in that regard. SA. Petitioner WILSON had secured the attendance of numerous witnesses to testify regarding his significant ties to the community, unquestioned likelihood of attendance at future court proceedings, and minimal financial resources. However, his attempt to raise these issues, as required by the Florida Supreme Court, was rejected by the Trial Court.

Accordingly, the Trial Court departed from the essential requirements of law by remanding Petitioner WILSON to pretrial detention with no bond, with no required findings as mandated by §901.041(4)(i), Fla. Stat. (2005). Such findings are mandatory and must be rendered within twenty four (24) hours of the pretrial detention hearing. Id.

Had the Trial Court conducted the proper inquiry on the issue of pretrial detention, it would have been forced to conclude that Petitioner WILSON should be released on bond. There is no evidence that Petitioner WILSON is a flight risk, and he has made all of his court appearances. There has been no allegation that Petitioner WILSON constitutes a threat of physical harm to the community, as required by § 907.041(1), Fla. Stat. (2005) to justify pretrial detention. That section states: “It is the intent of the legislature that the primary consideration be protection of the community from the risk of physical harm to persons.” See also, Lepore v. Jenne, 701 So.2d 980, 981 (Fla. 4th DCA 1998). In Lepore, the court addressed a Writ of Habeas Corpus filed on behalf of a defendant charged with aggravated stalking. The court found that the defendant had “willfully and substantially” violated the terms of pretrial release, and ordered him held without bond pending trial. The defendant’s violation related to his repeated telephone contact with the alleged victim. The Fourth District observed that in order to order

pretrial detention based on a threat of harm, the State must prove, and the trial court must find, that:

[T]he defendant is presently charged with a dangerous crime, that there is a substantial probability that the defendant committed such crime, that the actual circumstances of the crime indicated disregard for the safety of the community, and that there are no conditions or release reasonably sufficient to protect the community from the risk of physical harm to persons.

The Lepore court ultimately concluded that a substantial probability of physical harm was not present, and that “[I]t is hard to understand how telephone contact, no matter how unpleasant, can constitute physical harm to the victim or anyone else in the community.” Lepore, 708 So.2d at 981. The State’s burden of proof on the issue of physical danger is “beyond a reasonable doubt” citing Fla.R.Crim.P. 3.132(c)(1).

Applying the relevant standard to the instant case, it could not be logically argued that the continued operation of a website constitutes a threat of physical harm to the community. Respondent STATE ATTORNEY has made no such allegation, and no proof of physical harm was submitted at the hearing. SA. The Trial Court therefore committed clear legal error when it ordered pretrial detention of Petitioner WILSON, in the absence of any proof of physical harm, and silencing Petitioner WILSON’s counsel and denying him even the opportunity submit argument or proof on that critical issue.

3. The Trial Court Erred in Determining That the Bond Conditions Were Breached Absent any Evidence of Intent or Knowledge.

Petitioner WILSON strenuously argued in his Affidavit, and through counsel during the bond revocation argument, that he had no intent to violate the law or to breach any condition of pretrial release. A 130-131. Specifically, the unrefuted testimony of Petitioner WILSON, in his Affidavit, established the following:

1. He diligently attempted to comply with all conditions of release of which he was aware. A 130.

2. He did not understand or have any reason to believe that continued operation of the website, from outside the jurisdiction of Polk County or the Tenth Judicial Circuit, would put him at risk of violating any condition of bond or having his bond revoked, or being remanded to custody pending trial. A 130.

3. He was unaware of any other case in the country where this had occurred. A 130.

4. No law enforcement personnel ever advised Petitioner WILSON to stop distributing sexually oriented images on the website, or to stop distributing the specific images at issue in the bond revocation proceeding. A 130.

5. Petitioner WILSON would have removed all sexually-oriented images from the website if he had been advised that there was any risk of pretrial detention without bond, or revocation of his existing bond. A 130-131.

6. He attempted to obtain clarification from Respondents as to what categories of images could be safely distributed on the website, to no avail. A 131.

7. Petitioner WILSON removed all sexually-oriented images from the subject website shortly after the State filed its Motion to Revoke Defendant’s Bond. A 130.

8. Petitioner WILSON was not aware of the existence of the specific images at issue in the bond revocation proceeding, did not create those images, did not post those images, and could not possibly have reviewed every image posted by users throughout the world on the website which contained over 250,000 images at any given time. A 130, 133, 134-35.

In addition to the above, it is important to note that none of the activities occurred within Polk County, Florida, or the Tenth Judicial Circuit.⁷ A 132. The

⁷ Notably, the State also failed to establish venue in its case in chief, or at any time in the revocation proceedings. The un-rebutted testimony of Petitioner WILSON established that he moved out of Polk County and the Tenth Judicial Circuit, immediately after his arrest. A 132. Moreover, the images at issue were posted by individuals throughout the world, without prior knowledge or approval of Petitioner WILSON. A 133-135. The website, itself, is hosted in The Netherlands, A 132, and Petitioner WILSON maintains no business contacts relating to the website in Polk County, or the Tenth Judicial Circuit. A 132. The only connection between this case and Polk County was the downloading of the content from the server in Amsterdam by Investigator Gates, who is the only known person to access the images in Polk County. SA. Therefore, Respondent STATE ATTORNEY failed to establish that any offense occurred in Polk County, Florida thereby failing to meet the venue requirement for criminal offenses. Croft v. State, 139 Fla. 711, 191 So. 34 (1939); Pennick v. State, 453 So.2d 542 (Fla. 3d DCA

1984); Brown v. State, 728 So.2d 335 (Fla. 4^th DCA 1999).

website is hosted in The Netherlands, A 132, and had no connection with Polk County until it was brought there by Investigator Gates in the course of his investigation. A 132; 57-59. It was therefore not reasonable for Petitioner WILSON to be legitimately concerned about being remanded to custody, with no bond, based on the unknown postings of website members, of which he was unaware and which he had not approved, which members acted unilaterally from areas throughout the world, to post images to a website hosted in The Netherlands, while Petitioner WILSON resided outside the jurisdiction of Polk County, Florida.

Under Florida law, Petitioner WILSON may not be held responsible for violating a condition of release, of which he was unaware. Respondent STATE ATTORNEY was required to introduce credible evidence that Petitioner WILSON was informed of the relevant conditions of pretrial release that he refrain from certain conduct, and that the violation of the condition was willful. Pilorge v. State, 876 So.2d 591, 591-592 (Fla. 5th DCA 2004). The fact that a condition of pretrial release is deemed “mandatory” is insufficient to establish the presumption that the defendant was aware of the condition. Id. at 592. For example, requiring the defendant not to engage in employment connected with obscene material is not a standard, mandatory condition of pretrial release of which one would be aware. Carter v. Carson, 370 So.2d 1241, 1242 (Fla. 1st DCA 1979). Such a condition does not bear any relationship to a legitimate purpose of bail, i.e., ensuring the

defendant’s appearance at future court proceedings. Id., citing Ladoga Canning Corp. v. McKenzie, 370 So.2d 137 (Fla. 1979).

Respondent STATE ATTORNEY offered no evidence to establish that Petitioner WILSON was aware that the continued distribution of images from his website could possibly result in a revocation of his bond or imposition of pretrial detention. Both the facts and the law establish the reverse: Petitioner WILSON made every effort to comply with the law, inquire about its requirements, and address the concerns of Respondents in regards to distribution of material from his website. He received no advance warning or guidelines to govern his conduct in regards to operation of the website. Under First Amendment principles, all sexually-oriented images of adults are presumed to be constitutionally protected. Reno v. ACLU , supra. Moreover, Petitioner WILSON is entitled to continue distributing materials alleged to be obscene, pending a final determination of obscenity by the trier of fact at the conclusion of the case. Heller v. New York, 413

U.S. 483 (1973); State v. U & L Theaters, Inc., 307 So.2d 879, 881 (Fla. 3d DCA 1974). In light of this presumption of protection that is carried with sexually- oriented materials throughout the conclusion of an obscenity case, Petitioner WILSON had no reason to believe that continued operation of his website, in the same manner as it had been when he was originally charged, could result in a revocation of his bond or in pretrial detention. A 130. Since the images at issue

were posted by website users throughout the world, without any prior knowledge or approval from Petitioner WILSON, there is no evidence that he willfully violated any conditions of pretrial release, even assuming, arguendo, that probable cause exists to find the images obscene.⁸ Therefore, Respondent STATE ATTORNEY failed to meet its burden of proving “willfulness” in connection with the commission of new crimes. Accordingly, the Court’s determination that a violation occurred in the absence of the required evidence of intent, renders the finding of a violation of the terms of pretrial release, clearly erroneous.

4. The Trial Court’s Failure to Consider the Allegedly Obscene Materials “As A Whole” Constitutes Fundamental Error Requiring Reversal.

As noted in the Statement of the Facts, the Trial Court determined that a collection of isolated images, and several video clips, extracted from Petitioner WILSON’s website, met the probable cause standard for obscenity, thereby justifying a finding that Petitioner WILSON committed new crimes while on pretrial release. A 231. Instead of considering the website, from which the materials were taken, as a whole work, the Trial Court allowed the State to present individual images and video clips extracted from the hundreds of thousands of images appearing on the website. SA. Moreover, the Trial Court allowed the State to present this evidence in isolation from the comments, posted by users, and

⁸ Petitioner WILSON does not concede that any content from the website is obscene.

associated with the images. These comments often contained humor, or quality evaluation associated with the images. A 174-188; A 200. In addition, the images forming the basis for the bond revocation allegations appeared to be part of a series or set of images, however the entire set of images was not provided to Judge Durrance, to evaluate the “whole” work. A 177; SA.

Investigator Gates confirmed under cross examination that the images presented appeared to be taken from a series of related images. SA. The failure to consider the series of images “as a whole” in the context of the associated comments dramatically affected the impact of the content on the viewer, and prevented a proper evaluation of the serious literary, political, scientific, or artistic value associated with the work as required under the Florida obscenity statute and the Miller test. A 200. As argued by counsel for Petitioner WILSON, considering only selected images taken from certain pages of the entire website without the associated comments is tantamount to extracting a sentence, from a paragraph, from a chapter, of a book, and claiming that the sentence is, on its own, obscene. SA. This is not permitted under the Florida Statutes or the First Amendment.

Examination of isolated portions of larger works to determine the question of obscenity constitutes fundamental error, in light of the test announced in Miller

v. California, supra. There, the Court announced a stringent set of criteria, which has become the “Miller Test,” and which requires the following evaluation:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, supra, at 415 U.S. 24.

Each prong of the Miller Test must be considered; in order for the evaluation to meet constitutional standards. See: Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 132 L.Ed.2d 403 (2002) (Court struck down portions of the Child Pornography Prevention Act due to, inter alia, its failure to consider all prongs of the Miller Test when evaluating the legality of virtual child pornography). Since sexually-oriented materials appearing on the Internet are presumptively deserving of full First Amendment protection, ACLU v. Reno, 521

U.S. 844, 112 S.Ct. 2329, 138 L.Ed.2d 874 (1997), the materials published on Petitioner WILSON’s website are presumed to be constitutional unless each prong of the Miller Test is properly applied, and the material found to be obscene, as a whole.

While very early cases allowed for segmented review of individual items, in determining obscenity, that approach was decisively rejected in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1301, 1 L.Ed.2d 1498 (1957). There, the High Court

adopted the requirement that “…books, pictures, and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion.” 354 U.S. at 490. Likewise, in Penthouse v. McAuliffe, 610 F.2d 1353 (5^th Cir. 1980), the court reaffirmed the “as a whole” requirement, and ruled that magazines must be considered in their entirety, and not as a volume of separate ‘works’ in the form of individual pictures. Id at 1367. The Fifth Circuit concluded that the Supreme Court intended magazines to always be considered as whole works, even though made up of individual articles and pictures. Id at 1368. The only conceivable exception would be where unrelated

“value” material is inserted as a “sham” such as where hardcore materials were interspersed throughout the Bible. Id. Importantly, “[t]he inclusion of serious literary matter in significant proportions may preclude a finding that a magazine is obscene even though the magazine contains items, photographs for example, which standing alone would be found obscene under the Miller test.” City of Urbana v. Downing, 539 N.E. 2d 140, 148 (Ohio 1989). The Florida Supreme Court agreed with this analysis in Ladoga Canning Corporation v. McKenzie, 370 So.2d 1137, 1141 (1979), wherein it held:

The Miller Court made it clear that the portrayal of sexual conduct, without more, does not render a publication obscene. The determination of obscenity must be based upon an examination of the work as a whole, rather than isolated passages.

Id at 1141 [emphasis added; citations omitted].

In light of the above, the Trial Court erred in considering only portions of the “whole” work at issue in the instant case, and basing its obscenity determination on isolated images and video clips, without reference to the remainder of the graphic material, and without consideration of the text and comments associated with the content. This error was compounded by the fact that the comments associated with the images are critical for purposes of evaluating the final prong of the Miller Test, i.e., the existence of serious literary, artistic, political, or scientific value. A 174-188; A 200. Considering only certain images also ignores the significant literary and political value associated with the War Images. A 135-139; 200-201. Since the Trial Court’s obscenity determination was fundamentally flawed due to failure to properly apply the Miller Test, the determination that Petitioner WILSON committed new crimes while on pretrial release was clearly erroneous and must be reversed.

5. Federal Law Preempts Application of State Obscenity Law to the Internet.

As noted above, Petitioner WILSON timely sought to have various constitutional challenges heard prior to determining whether Petitioner WILSON had committed new obscenity violations, implicating bond revocation. One of the constitutional challenges raised, in defense of the underlying charges, is that of federal preemption under the Commerce Clause. A 83-97. The Trial Court

refused to consider Petitioner WILSON’s previously-filed constitutional challenges, before applying Florida’s obscenity law to Petitioner WILSON, in the bond revocation proceeding. A 111. Had it done so, it would have been forced to conclude that Florida’s obscenity statute cannot be applied to Internet content, consistent with the “dormant” Commerce Clause. ⁹

The instant case – one of distinct first impression – involves the application

of Florida’s obscenity law, Chapter 847, et. seq., Fla. Stat. (2005) to online media. Therefore, unique and unsettled issues of law are implicated. One of those issues involves the interplay between state and federal regulation of Internet commerce, and the State’s ability to criminalize distribution of online media. This appears to be a matter of first impression anywhere in the United States.

The Internet has been called “the most participatory form of mass speech yet developed.” Reno, supra, 521 U.S. at 863 (citation omitted). The United States Supreme Court identifies the web as a “unique and wholly new medium of worldwide human communication. Id., 521 U.S. at 850. Online communications have historically been regulated at the federal, as opposed to the state level. The

⁹ It should be noted that the facial invalidity of a statute under the Commerce Clause can be raised at any time, including the first time on appeal. State v. Johnson, 616 So.2d 1, 3 (Fla. 1993); Trushian v. State, 425 So.2d 1126, 1129 (Fla. 1982); Harvey v. State, 786 So.2d 28 (Fla. 1^st DCA 2001) rev. granted 797 So.2d 585 (Fla. 2001). In addition, once an Appellate Court has jurisdiction it may address any item which affects the case. Whitted v. State, 362 So.2d 668 (Fla. 1978); Miami Gardens, Inc. v. Conway,102 So.2d 622 (Fla. 1958); Vance v. Bliss Properties, Inc., 109 Fla. 388, 149 So. 370 (1933).

Communications Decency Act of 1996 contains the federal regulations for obscenity distributed on the Internet.

Online communications are contemporaneously available in all states – and throughout the world. In order to attempt to comply with each individual state’s laws, an online business would need to negotiate a “mine field” of potentially inconsistent and widely varying regulations and prohibitions. Imposing such burdens on website operators would cause the Internet to grind to a halt, since it would be virtually impossible to research and comply with fifty (50) sets of different regulations for the distribution of a particular image or movie on the Internet.¹⁰

As a result of these concerns, and others, the courts have uniformly struck

down any attempt of state-level regulation of sexually-oriented, online content, even where such regulation was supported by a compelling government interest such as the protection of minors. See, American Book Sellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D. Vt. 2002); PSI Net, Inc. v. Chapman, 167 F.Supp. 878 (W.D. Pa. 2001), question certified, 317 F.3d 413 (4th Cir. 2003); Cyberspace Communications, Inc. v. Engler, 142 F.Supp.2d 827 (E.D. Mich. 2001); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); American Libraries

¹⁰ The problem would be compounded in those states whose obscenity laws are determined by community standards in counties or some other inferior political subdivision. Notably, some states such as Oregon and Hawaii do not regulate obscenity at all.

Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); Center for Democracy & Technology v. Pappert, 337 F.Supp.2d 2006 (E.D. PA 2004); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773 (D.S.C. 2005). Each of these cases recognized the need for uniform regulation of online content, and the incompatibility of state-level regulation of Internet communications and the federal uniformity goals established by years of Commerce Clause jurisprudence.

The “dormant” Commerce Clause restricts the powers of states to regulate interstate commerce. Barclays Bank, PLC v. Franchise Tax Board of California, 512 U.S. 298, 310 Fn. 9, 114 S.Ct. 2268, 129 L.Ed.2d 244 (1994). State laws that

regulate activity requiring a national regulatory scheme, but which impose multiple inconsistent burdens on interstate commerce are generally found invalid. See, e.g., CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 88-90, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987); Southern Pac. Co. v. State of Ariz., ex. rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945); Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520, 529, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1945). In addition, state laws that regulate activities outside the state’s borders may also be invalid since a state may not export its own domestic policies onto other states by enacting laws regulating activities occurring outside its borders. Edgar v. Mite Corp., 457 U.S. 624, 641-43, 102 S.Ct. 26, 29, 73 L.Ed.2d 269 (1982); Baldwin v. G.A.F. Seelag,

Inc., 294 U.S. 511, 521, 55 S.Ct. 497, 79 L.Ed. 1032 (1935). Even if a state law is

not invalid under the foregoing test, it may still be invalid under the balancing test articulated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). The Pike test is only used if the statute passes the discriminatory test and the inconsistent burden test. Campeau Corp. v. Federated Dept. Stores, 679 F. Supp. 735, 738-39 (S.D. Ohio 1988). Under the Pike balancing test, the court balances the burden placed on interstate commerce based on the state law against the local benefit derived from the law. Pike, supra, 397 U.S. at 142. The state law is invalid if the burden on interstate commerce is clearly excessive compared to the putative local benefit. Id.

All of the aforementioned decisions evaluating the constitutionality of state laws regulating the availability of sexually explicit materials to minors on the Internet have concluded that the statutes at issue violate the Commerce Clause, in addition to First Amendment principles. Dean, supra; PSI Net, supra; Engler, supra; Johnson, supra; Pataki, supra. Florida’s obscenity Statute suffers from precisely the same constitutional deficiency when applied to online communications. The Internet is distinctly different from other modern media such as radio and television (cable or satellite). Online communications are not “broadcast” into one’s home or community. A 132-133. Instead, computer users must request access to online files that are stored on host computers located in remote places – in this case, The Netherlands. A 132-133. Website operators

cannot block users in geographic locations. A 133. Therefore, operators cannot be constitutionally subjected to the vagaries of fifty (50) different states’ laws relating to the distribution of online content. With obscenity regulation, the constitutional problems are compounded: Obscenity is purportedly regulated by “local” community standards. Website operators would therefore not only be expected to comply with multiple inconsistent statewide regulations, but further required to discern the distinctions between each community’s standards, within each state, without the ability to block receipt of the website material by users in specific geographic areas, unlike radio or television stations, which can readily avoid such markets. These factors create unique concerns that are applicable exclusively to publishers and distributors of online materials.

The Pataki decision is of particular relevance to the instant case. There, the Court concluded that since the Internet has become an important conduit for commercial activity, virtually any regulation affecting its operation is subject to Commerce Clause scrutiny. Pataki, supra, at 969 F.Supp. 169-173.

The Statute at issue in the instant case violates the Commerce Clause in several respects: Initially, the obscenity Statute purports to regulate conduct occurring outside Florida’s borders. It should be noted that the website at issue in the instant case is hosted outside of the United States’ borders; in Amsterdam, Netherlands. A 132. Users can submit content from anywhere in the world without

prior approval from Petitioner WILSON. A 133. Chapter 847, Fla. Stat. (2005), does not contain any limiting language designed to curtail the application of Florida’s obscenity laws only to activities occurring in the State of Florida. The obscenity statutes purportedly regulate the online distribution of any obscene materials to any resident in the State of Florida, regardless of where the website is hosted, and irrespective of the location from which the materials originate.

The courts have noted that website operators have no reliable means of limiting the geographic distribution of erotic materials on the Internet. ACLU v. Reno, 217 F.3d 162, 175 (3d Cir. 2000) (“Web publishers are without any means to limit access to their sites based on geographic location of particular Internet users.”); Ashcroft v. ACLU, 535 U.S. 564, 575 (2002) (plurality opinion, Nitke v.

Ashcroft, 253 F.Supp.2d 587, 603 (S.D. NY 2003). This was confirmed by Petitioner WILSON, in his Affidavit. A 133. Many of the images contained on the website came from end users in other countries, such as Iraq and Afghanistan. A 135-136. The images at issue in the bond revocation matter could have come from anywhere in the world. Interestingly, given the fact that Petitioner WILSON had moved outside of Polk County, and the Tenth Judicial Circuit, Respondents are purportedly attempting to regulate online activity that has no connection with Polk County Florida, other than the fact that Investigator Gates decided to download certain materials onto his computer. There is no rational basis to apply Florida

law, or Polk County community standards, to this international distribution of images subject only to federal law. The Commerce Clause was included in the United States Constitution just to avoid such anomalies.

Since distribution of adult-oriented material on the Internet is, by its very nature, interstate commerce,¹¹ a cohesive national scheme of regulation is required, and the Statute is subject to “dormant” Commerce Clause analysis. International commerce is subject to Commerce Clause restrictions just like interstate commerce. Walbash, ST. L. & P. RY. CO. v. Illinois, 118 U.S. 557, 574-75, 7 S.Ct. 4, 30 L.Ed. 244 (1886) (“For the regulation of [commerce with foreign countries and among the states] there can be only one system of rules, applicable alike to the whole country.”). By allowing state-level obscenity laws to be applied to Internet

media, this Court would be authorizing inconsistent regulation of interstate commerce in precisely the way that the Commerce Clause forbids.

Even if the Statute does not inconsistently regulate interstate commerce, it fails the “Pike Test” since the burdens on interstate commerce outweigh any putative local benefits conferred by the Statute. See Pike, supra. Given the

¹¹ Reno v. ACLU, supra, American Book Sellers Foundation for Free Expression v. Dean, supra; PSI Net, Inc. v. Chapman, supra; Cyberspace Communications, Inc.

5. Engler, supra,; ACLU v. Johnson, supra,; American Libraries Association v. Pataki, supra,; Center for Democracy & Technology v. Pappert, supra,; Southeast Booksellers Ass’n v. McMaster, supra.

existence of several federal obscenity statutes¹² that already regulate the online distribution of obscene materials, any additional benefits derived by the almost identical state level of regulation is de minimis at best. Any allegedly obscene content distributed via Internet websites could be readily addressed by the United States Department of Justice, which boasts in news reports that it has recently created a well-funded group of investigators and trial attorneys to investigate and prosecute obscenity violations by commercial adult websites.

The Florida obscenity Statute regulating obscene materials on the Internet provides little in terms of local benefit,¹³ given the existence of the federal legislation. When balanced against the burden on interstate commerce that is created by the existence of a state statute, seeking to regulate international online commerce, the Statute must fall under the Pike Test.

Finally, the application of Chapter 847, Fla. Stat. (2005) to the Internet has the effect of exporting Florida’s domestic policies (or as here those of a distinct and unique county) onto other states. As observed in Pataki at 177, an Internet user or webmaster may not intend for his website to be accessible to Florida customers, but cannot prevent Floridians from accessing his messages or content, and cannot prevent such content from passing through Florida computers. Thus,

¹² 18 U.S.C. §§ 1462, 1463 & 1465.

¹³ In fact, the Record reflects no impact on Florida (or Polk County) from the website other than that caused exclusively by Investigator Gates’ deliberate

accessing of some of its images.

by allowing the State of Florida, and in this case, Polk County, to export its domestic policies with regard to obscenity into other states, the Statute is rendered per se invalid under the extraterritoriality analysis espoused in Edgar, supra and Healy v. The Beer Institute, 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275

(1989).

Free expression would be impermissibly curtailed if Internet users were required to comply with multiple inconsistent state obscenity regulations. Just like the rail and the highway regulations in earlier cases, the Internet would be severely burdened if users were “lost in a welter of inconsistent laws imposed by different states with different priorities.” Pataki, supra at 182. Inconsistent state regulations of the Internet forces website operators into the “Hobson’s Choice” of: 1.) Complying with the most censorial community standard; or, 2.) Forgoing communications protected in the user’s state (and many others); or, 3.) Risking prosecution based on the geographic¹⁴ fortuity of the unknown recipient. “Further development of the Internet requires that users be able to predict the results of their

Internet use with some degree of assurance. Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace.” Pataki at 183.

Aside from the “dormant” Commerce Clause concern, Chapter 847, Fla. Stat. (2005), is also specifically preempted by federal Internet obscenity law,

¹⁴ Again, the geographic fortuity here is that of a single county or judicial district.

where online distribution is concerned. When the federal government decides to regulate a specific field or industry, any inconsistent state laws may be rendered invalid to the extent they attempt to regulate that same field.¹⁵ Federal preemption can be explicitly stated in the statute’s language, or implicitly contained in the structure and purpose of the regulatory scheme.¹⁶

In the field of obscenity regulation, Congress has adopted the comprehensive Communications Decency Act of 1996. This Statute evidences a clear intent to regulate a specific activity or industry, i.e. the commercial distribution of obscene materials on the Internet. Moreover, Congress’ intent to preempt state law is evident from Section 230 of the Act, which provides for express preemption of any inconsistent state laws:

Section 230. Protection for private blocking and screening of offensive material

* * *

3. Protection for ”Good Samaritan” blocking and screening of offensive material

   1. Treatment of publisher or speaker

¹⁵ Preemption derives from the Supremacy Clause, Article VI, Clause 2 of the United States Constitution; see, English v. General Elec. Co., 496 U.S. 72, 70-79, 110 S.Ct. 2270, 110 L.Ed. 2d., 65 (1990) [Enumerating the three circumstances in which state law is preempted under the Supremacy Clause as: 1) where Congress explicitly defines the extent to which its enactments preempt state laws; 2) where a state law regulates conduct in a field that congress intended the federal government to occupy exclusively; and 3) to the extent that state law actually conflicts with federal law.]

¹⁶ Moralis v. TransWorld Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119

L.Ed.2d 157 (1992).

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

2. Civil liability

No provider or user of an interactive computer service shall be held liable on account of –

1. any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

2. any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph.¹⁷

3. Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

3. Effect on other laws

   1. No effect on criminal law

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

2. No effect on intellectual property law

¹⁷ So in original. Probably should be ”subparagraph (A).”

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

3. State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

4. No effect on communications privacy law Nothing in this section shall be construed to limit

the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law…[Emphasis Added]

As is evident by the above-quoted language, Congress has specifically preempted the states from enforcing inconsistent state law. A host of cases have recognized Section 230 preemption, including the Florida Supreme Court in Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). There, a parent sought to hold America Online, Inc., an Internet Service Provider, responsible for allowing a user to market obscene photographs and videotapes of the parents’ minor son. The court concluded that Section 230 of the Communications Decency Act (CDA) preempted all Florida law causes of action. Id. at 1017.

A significant body of case law has developed since the enactment of the CDA, affirming the preemptive effect of Section 230 immunity on state laws. E.g., Associated Bank-Corp v. Earthlink, Inc., 2005 WL 2240952 (W.D. Wis. September 13, 2005); Barrett v. Fonorow, 799 N.E.2d 916 (Ir. Ct. App. 2003); Blumenthal v. Drudge, 992 F.Supp. 44 (D. D.C. 1998); Corbis Corp v.

Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004); Does v. Franco Prods, 347 F.3d 655 (7th Cir. 2003); Doe v. Oliver, 755 A.2d 1000 (Conn. Super. Ct. Mar. 7, 2000); Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. App. Div. Jan. 31, 2002); Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D.

La. Dec. 17, 2002); Batzel v. Smith, 2003 WL 21453358 (9th Cir. June 24, 2003); Green v. America Online, Inc., 318 F.3d 465 (3d Cir. 2003); Hart v. Internet Wire, Inc., 145 F.Supp.2d 360 (S.D. NY June 14, 2001); Novak v. Overture Servs., Inc., 309 F.Supp.2d 446 (E.D. NY 2004); OptInRealBig.com, LLC. v. Iron Port Sys., Inc., 323 F.Supp.2d 1037 (N.D. Cal. 2004); Stoner v. eBay, Inc., 2000 WL 1705637 (Cal. Super. Ct. Nov. 7, 2000). While little has been written about the effect of Section 230 on inconsistent state criminal laws, it appears that criminal laws are not excluded from the scope of the preemption. While Congress specifically mentioned in the legislation that Section 230 had no effect on federal criminal law relating to obscenity or sexual exploitation of children, or any other “federal criminal statute” [emphasis added], no such limiting language can be found with regard to the preemptive effect on state criminal law. The section merely states:

No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this Section. Section 230(d)(3).

In light of the clear overlap and inconsistent regulation of state and federal obscenity matters, there can be no doubt as to Congress’ intent to preempt inconsistent state obscenity regulations. Section 230 is designed to prevent the imposition of liability on those who do not create content posted on a website, such as Petitioner WILSON. A 133. Yet Respondents are trying to do exactly that, using the state obscenity laws. This renders Florida’s obscenity inconsistent laws inconsistent with the effect of Section 230’s immunity provisions. Given the consistent preemptive effect on other similar state laws, as interpreted by the courts across the country, this Court should find that Chapter 847, Fla. Stat. (2005) is preempted by Section 230 of the Communications Decency Act of 1996.

As a result of the above, any attempt to invoke Florida’s obscenity prohibitions to regulate Internet transactions must be dismissed based on inconsistency with the Commerce Clause and federal preemption.

In light of the above, Petitioner WILSON has established that Florida’s obscenity statute is preempted with regard to its application to distribution of online content. Therefore, this law could not form a valid basis for the underlying violation, let alone bond revocation in the above-styled case.

6. The Evidence Against Petitioner WILSON was Seized in Violation of the Fourth Amendment, Under Binding Precedent From This Court, and Should Have Therefore Been Suppressed.

The evidence introduced against Petitioner WILSON in this case was obtained by Investigator Gates by becoming a member of the website, and copying the images and video clips at issue in the bond revocation proceedings. SA. Investigator Gates admitted that no warrant had been sought, nor obtained, prior to copying the materials for use in the bond revocation hearing. He did not contend that he received any prior permission to do so, but instead relied upon his status as a member of the website which authorized him to view the materials posted on the website. SA.

This case is on all fours with this Court’s decision in Miragaya, supra. There, the defendant, who owned a video store, was charged with possession of obscene video tapes with intent to sell or deliver. Id. at 263. The Sheriff’s Officers obtained a membership card from the defendant’s video store authorizing rental of video tapes for a twenty four hour period, and thereafter rented three (3) video tapes for the Sheriff’s Department and made copies thereof. The copies were made to preserve evidence to be presented to the State Attorney for possible charges. Id. No warrant was obtained prior to making the copies. This Court held that the officers’ act of copying the rented video tapes constitutes a seizure of the defendant’s property, without a warrant. The lawful retention of materials alleged

to be obscene depends on the issuance of a warrant for the materials prior to the officers’ obtaining them. “Only when a warrant has been issued is the retention not a prior restraint.” Id. at 264. The Court therefore ordered suppression of the video tapes based on violation of the Fourth Amendment.

The holding in Miragaya is directly applicable with the instant case. Respondent SHERIFF’s act of copying the images and video clips after becoming a member of Petitioner WILSON’s website, but prior to seeking a warrant, constitutes an illegal seizure under the Fourth Amendment, and a prior restraint on protected speech under the First Amendment. Therefore, Petitioner WILSON’s objection to the introduction of the evidence in support of the obscenity allegations should have been sustained, under the exclusionary rule, and the evidence suppressed. Failure to honor binding precedent from this Court in a factually indistinguishable situation constitutes a departure from the essential requirements of law.

3. CONCLUSION

This case illustrates one of the clearest and most egregious examples of how the obscenity statute can be misused by law enforcement seeking to interfere with First Amendment rights. Petitioner WILSON remains incarcerated based solely on his continued distribution presumptively protected speech, before any final judicial determination that anything is obscene, and without any indication that he presents

a danger to the community. Given the strong Florida constitutional right to bail, and the myriad of constitutional violations committed throughout the proceedings below, Petitioner WILSON’s continued incarceration under these circumstances is patently unlawful and unconstitutional.

WESTON, GARROU, DEWITT & WALTERS

Lawrence G. Walters Florida Bar No.:776599 781 Douglas Avenue

Altamonte Springs, Florida 32714 (407) 389-4529 (phone)

(407) 774-6151 (fax)

www.FirstAmendment.com Attorneys for Petitioner WILSON

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been sent via overnight delivery to: Charlie Crist, Florida Attorney General, The Capitol PL-01 Tallahassee, FL 32399; Bradford Copley, Esquire, Polk County State Attorney’s Office, 255 North Broadway, Second Floor, Bartow, FL 33830, Sheriff Grady Judd, Polk County Sheriff’s Office, 455 North Broadway Avenue, Bartow, FL 33830, and Richard D. Mars, Esquire, 343 West Davidson St., Suite 103, Bartow, FL 33831, this 20th day of December, 2005.

IN THE SECOND DISTRICT COURT OF APPEAL

CHRISTOPHER M. WILSON, Petitioner, v. GRADY JUDD, in his official capacity as Sheriff of Polk County, Florida, and JERRY HILL, in his official capacity as State Attorney in and for the Tenth Judicial Circuit, Respondents. /

* * * * * * * * * * * * * *

APPEAL CASE NO.: LT CASE NO.: CF-05-7738 10th Judicial Circuit, Polk County, Florida Emergency Relief Requested Pursuant to Fla.R.App.P. 9.300(c)

EMERGENCY APPLICATION FOR STAY PENDING CONSIDERATION OF FULL PETITION FOR WRIT OF HABEAS CORPUS

1. The Emergency Relief Sought

Petitioner Christopher M. Wilson (hereafter “Petitioner”), pursuant to Fla.R.App.P. 9.300 and 9.3101, moves this Court, on an emergency basis, to issue an immediate order staying, pending this Court’s consideration of his full Petition for Writ of Habeas Corpus, the order of the lower court entered on December 16, 2005 in the case of State v. Wilson, Polk County Circuit Court No. CF-05-7738, revoking his bond and remanding him to custody pending trial. A. 231. Petitioner thus seeks a stay

1 Petitioner sought a stay from the Lower Court but the Court refused to consider the request. Therefore, Petitioner alternatively requests that this Motion be considered a motion to review the Lower Court’s refusal to consider a stay.

order requiring his immediate release from custody, and reinstatement of his original bond, pending a determination of the accompanying Petition, on the merits.

Petitioner also requests, on an emergency basis and pending this Court’s consideration of his full petition for writ of habeas corpus, an order enjoining respondents from any further attempts to revoke his bond or remand him to custody pending trial, where the sole basis for such attempts would be the allegation that any allegedly obscene materials were posted on his website, in the absence of any allegation that he has exhibited any images or other media which have previously been determined obscene in any final judicial action.

2. The Grounds Offered In Support of This Requested Emergency Relief

Petitioner incorporates, as grounds in support of this emergency application, those portions of his accompanying Petition for Writ of Habeas Corpus which assert that the actions of Respondents constitute a facial violation of the First Amendment as either a prior restraint, state action impermissibly chilling expression, or prior punishment, in violation of the free speech guarantees of the First and Fourteenth Amendments of the United States Constitution and parallel provisions of the Florida Constitution.

It is Petitioner’s position that, as a matter of law, incarceration based solely on probable obscenity, and prior to a final jury determination thereof, or at least absent an allegation that the exhibition occurred after a prior judicial determination of obscenity,

constitutes an impermissible prior restraint on First Amendment rights utterly inconsistent with state and federal constitutional safeguards.

While Petitioner readily concedes that for all offenses other than obscenity, a finding of probable cause that new violations have occurred while one is free on bail is more than sufficient grounds for the revocation of a prior bail order. However, an entirely different principle comes into play when the alleged crime is one of obscenity. This is because until sexually explicit materials are proven obscene in a final judgment, they are presumptively protected by the First Amendment.² This fact precludes a bond revocation under circumstances that ordinarily would allow a bond revocation. This is but one instance of a common principle perhaps best articulated in

Castro v. Superior Court, 9 Cal.App.3d 675, 686, 88 Cal.Rptr. 500, 509 (1970): “[W]hat is permissible when ordinary criminal conduct is involved, frequently comes to grief when tested against the First Amendment.”

For purposes of this emergency application only, Petitioner assumes, arguendo, the probable obscenity of all the images the State has relied upon in seeking the revocation of his bond, even though he is confident that, following a trial before a jury

² See, e.g., Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973),

holding that, prior to a final judicial determination of obscenity, sexually oriented materials are “presumptively protected under the First Amendment.” Id. at 491, 93 S.Ct. at 2794. Similarly, in Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), the Court held that bookstores and commercial theaters are “presumptively under the protection of the First Amendment.” Id. at 504, 93 S.Ct. at 2801. The same presumption attaches to a website exhibiting sexually oriented materials, and to all the materials on such site. ACLU v. Reno, 521 U.S. 844, 112 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

of his peers, the images will not in fact be found obscene, nor will he be found criminally responsible for their presence on his website. (The uncontroverted evidence is that all of the allegedly obscene images were posted on Petitioner’s website by members of the public without Petitioner’s prior or subsequent awareness of their existence on his website until such fact was brought to his attention by Respondents.)

Because Petitioner’s incarceration was based solely upon the allegation that his website posted allegedly obscene items while he was free on bail pending charges that other items on his website were obscene, the mere fact that the State sought his incarceration on this ground has forced him to remove all of the sexually oriented images from his website and has effectively put him out of business, all prior to any jury determination, or final judicial determination, that any of the items on his website were in fact legally obscene, or that he was criminally responsible for their exhibition.

Consequently, the novel procedures employed here by the State³ have

³ Petitioner’s attorneys, who have specialized in this area of the law for over 30 years, are unaware of any prior prosecution anywhere in the United States where one charged with alleged obscenity offenses was incarcerated prior to trial solely on the basis that they continued to distribute or exhibit allegedly obscene items (not yet found to be obscene) pending their trial on obscenity charges. The unprecedented nature of this action was confirmed by an independent, expert censorship attorney who has studied proceedings in obscenity cases for decades, and has found no instance of bond being revoked under these circumstances. A. 229.

effectuated an immediate and de facto pre-trial prior restraint of enormous and unconstitutional proportions (forcing the closure of the primary sections of a website with a large worldwide membership on which were typically posted approximately 270,000 different sexually oriented images at any one time prior to its forced closure by the State. A. 130-131). Because, as noted above, all sexually oriented media materials are presumptively protected by the First Amendment until proven otherwise in court, the State has caused a serious (and to Petitioner’s awareness, unprecedented) ongoing restraint of First Amendment rights which increases with each additional day that the website is forced to remain closed.

As shown in Point IV of the accompanying Memorandum, this ongoing restraint of expression entitles Petitioner to an immediate stay of his bail revocation order (and to a temporary injunction prohibiting additional bond revocation motions based solely on additional allegations of unproven obscenity) so he can re-open his website at the very least, pending this Court’s consideration of his full Petition for Habeas Corpus. The legal basis for this application is set forth below.

MEMORANDUM IN SUPPORT OF EMERGENCY APPLICATION

Pursuant to an order issued on December 16, 2005 revoking his bail bond and remanding him to custody, A. 231, Petitioner Christopher Wilson (hereinafter “Petitioner”) is presently in the custody of Respondent Grady Judd, in his official capacity as Sheriff of Polk County, Florida (“SHERIFF”) and shall remain so, unless

released by this Court, pending trial on charges that certain images found on a website he is charged with operating were obscene in violation of local community standards in Polk County, Florida⁴. Respondent Jerry Hill, in his official capacity as State Attorney in and for the Tenth Judicial Circuit (“STATE ATTORNEY”), successfully moved to revoke that bond and impose pretrial detention without bail based on allegations that new and different photos appeared on Petitioner’s alleged website after his initial arrest⁵ which the State likewise believes to be “obscene” under Polk County, Florida community standards.

⁴ This notwithstanding that: (1) the computer server on which the website has been maintained is located in The Netherlands; (2) Petitioner never sent any materials to, or specifically solicited any persons within, Polk County, Florida; (3) there was no suggestion that Petitioner, or any persons working under his control, had any prior awareness of any of the particular allegedly obscene materials charged in this case, nor that any of them had approved the placement of these particular images on the website; (4) the website typically maintained over 250,000 photos at any given point in time, approximately 95% of which were put on there unilaterally by users throughout the world authorized to access the website, without any prior review, knowledge or approval of Petitioner or those assisting in operating the website; (5) it would be a physical impossibility to run such a website successfully if the operator had to preview each separate photo before it could be posted on the website; and (6) the only connection to Polk County, Florida is that, at the time of the alleged offenses, Petitioner is alleged to have previously resided there. A. 129-138. Petitioner does not concede that Polk County community standards can be legally applied to materials disseminated via the Internet, as argued in his pretrial motion relating to that issue.

⁵ As indicated in Petitioner’s affidavit submitted below in opposition to the State’s motion to revoke bond, Petitioner caused all sexually oriented images to be removed from the website when he learned for the first time that the State considered their maintenance to be a violation of the conditions of his pre-trial release. A. 130-131.

Believing that it may treat an alleged obscenity offense no differently than any other offense allegedly committed while one is free on bond, the Respondent STATE ATTORNEY filed, and the lower court granted, a motion that the trial court “revoke the defendant’s bond and remand him to jail awaiting trial. A. 98

It should also be noted that, prior to the hearing, Petitioner, through his Affidavit, informed the trial court that he had no money left after paying the premium on his original bond with which to post any additional or supplemental bond. A. 137. Consequently, he informed the court that even if it were to deny the motion to remand him to custody, any order imposing a new or modified bond would be the de facto equivalent of an order remanding him to custody because Petitioner’s website has been closed, and the existing bond consumed all of Petitioner’s resources but for those necessary to obtain continuing legal representation. This fact was uncontroverted at the bail revocation hearing.

THE PETITIONER’S LEGAL POSITION

The First Amendment prohibits the revocation of bond, increase of bond, or imposition of a new bond requirement, solely on the basis of allegations of one or more new obscenity offenses occurring while on bond (where none of the offenses have resulted in convictions, and where the defendant is otherwise in compliance with all independent pre-trial detention criteria set forth in ‘ 907.041, Fla.Stat. (2005)), and does so in all cases, but at the very least under circumstances, as here, where such an order would constitute either de jure or de facto pre-trial detention.

LEGAL ARGUMENT

The notion that pre-trial detention of obscenity defendants under these circumstances⁶ is unconstitutional is clear under any of a variety of different aspects of First Amendment law including, but not limited to:

1. Pre-trial detention⁷ for unproven obscenity offenses is an impermissible form of prior restraint of the Petitioner and his website, not different in any mean-

⁶ I.e., circumstances where, but for the asserted new obscenity violations, no revocation of the existing bail would be authorized by §907.041, Fla.Stat. (2005), Florida’s pre-trial detention statute.

⁷ As used herein throughout, the term “pre-trial detention” is a reference to both de jure pre-trial detention and de facto pre-trial detention where bail is set in an amount beyond the defendant’s means.

ingful way from any of the numerous forms of prior restraint which have been universally condemned as prohibited by the First Amendment.

1. Pre-trial detention for unproven obscenity offenses under the circum- stances of this case, unless reversed on appeal, will cause an impermissibly chilling impact on websites throughout the nation, if not the world, and violate the First Amendment because substantial amounts of constitutionally protected material will be removed from the marketplace, due to the inability to determine obscenity in advance of a jury determination, and particularly given that, under the State’s theory, web-posted material must comply with the community standards of every local community in America. Also, this type of bail revocation procedure, if allowed, would not merely chill, but guarantee the total elimination of any and all “user- submission” type websites (of all types, sexually oriented or not) where the majority of the material on the website is placed there directly by individual users without prior approval of the website owner.

2. Pre-trial detention for unproven obscenity offenses is nothing less than “prior punishment,” a concept abhorrent to First Amendment values.

I

PRE-TRIAL DETENTION FOR UNPROVEN OBSCENITY OFFENSES IS AN IMPERMISSIBLE FORM OF PRIOR RESTRAINT.

In Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the

Supreme Court first recognized the bedrock constitutional principle that prior

restraints on expression violate the First Amendment. Since that time, that Court has repeatedly stated that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Heller v. New York, supra, 413 U.S. 483, 491 (1973), quoting New York Times Co. v. United States, 403 U.S. 713, 714 (1971), quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70

(1963). Accord: Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971);

Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181 (1968);

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975); and Vance v.

Universal Amusement Co., 445 U.S. 308, 316, fn. 13 (1980).

In Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 583, fn. 6 (1983), the Court reaffirmed that prior restraints “strike to the core of the Framers’ concerns” and accordingly compel a standard of scrutiny even higher than that applied to most regulations challenged as violative of the First Amendment.

The question presented by the appeal of this bond revocation order is whether the de facto or de jure detention of one accused of exhibiting obscene materials on an internet website pending trial on those charges constitutes an impermissible prior restraint of expression where:

1. the grounds for bail revocation consist solely of new additional unproven allegations of obscenity offenses;

2. there has been no conviction or jury finding that any of the charged materials are obscene;

3. the Petitioner has already posted a bond in the maximum amount he could possibly afford and would not have enough money to meet any increase in his bond or the setting of any additional bond, and would be forced to remain in custody pending trial if any such change in his bond status were ordered;

4. there is no evidence or even suggestion that Petitioner had ever even seen or been aware of any of the particular assertedly obscene photos that were hand-picked by the State for this prosecution, and in fact, there is affirmative uncontroverted evidence demonstrating that the photos were supplied to the website anonymously by any of thousands of potential users of the website without Petitioner’s advance knowledge;

5. it is abundantly clear that Respondents’ unstated primary goal is and has been the closure of Petitioner’s website;

6. no convictions have been returned by juries in obscenity cases in this jurisdiction in the last 20 years, obscenity cases against websites are rarely initiated in this jurisdiction, and this case involves a website with significant political value;

7. but for these asserted, but unproven, obscenity offenses, Petitioner has already demonstrated that he meets all the criteria under the state’s pre-trial

detention statute, FSA ‘ 907.041, for remaining free under the previously set

bond amount pending trial;

8. Petitioner has not otherwise in any way violated any terms of his existing bond; and

9. Respondents failed to request removal of the allegedly obscene material from the website after the arrest, and later declined Petitioner’s counsel’s request to provide any guidance as to what materials Respondents contend are obscene. A. 215.

In Near v. Minnesota, supra, the Court held that it will “cut through mere details of procedure” to analyze realistically “the operation and effect of the statute in substance.” 283 U.S. at 713. See also Kingsley Books v. Brown, 354 U.S. 436, 441 (1957) (“The judicial angle of vision in testing the validity of a statute . . . is ‘the operation and effect.'”)

Here, it is clear that the operation and effect of the Florida pre-trial detention statutes, as construed and applied by the prosecution, is not merely to allow Petitioner reasonable bail pending the trial of rarely-filed and controversial charges, but to silence Petitioner’s website before that trial takes place (as well as the websites of all other website owners in the jurisdiction, if not the state).

As Justice White wrote in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981), “the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed.” Here, the nature of the right assertedly threatened is the right to operate a website without fear of imprisonment at least until such time as Petitioner has been convicted of exhibiting any obscene materials. Consequently, the standard of review is under the First Amendment standards of prior restraint rather than the normal standards applicable generally to criminal bail revocation proceedings.

The pernicious evil of this type of bail revocation proceeding is best revealed by the following point:

Even if Petitioner wins at trial, and does so in each succeeding trial the State may bring against him, the State will still have achieved its goal because any defendant’s website (including the website in the present case) has no choice but to close down if the only alternative is the incarceration of those who operate it pending the opportunity for a fair trial on the underlying obscenity charges. But if the State may force the pre-trial detention of one charged with obscenity violations pending trial, simply for continuing to maintain a website the defendant believes to be constitutionally protected, then no such defendant, once obscenity charges are filed, will ever dare to continue to maintain a challenged website pending trial as it would insure the loss of their liberty, even if, as said above, none of the charges are ever

found valid at trial. In short, this bail-revocation strategy is a novel and outrageous assault on fundamental constitutional rights; its purpose and effect on the Petitioner is clearly that of a prior restraint. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), indicating that a prior restraint can be achieved through impermissible intimidation as well as by more traditional means.

However, for yet a separate reason, the State’s abuse of the bail revocation statutes in this case attempts imposition of an impermissible prior restraint. Specifically, after his initial arrest, Petitioner, through counsel, requested guidance from the State as to the type of sexually oriented photos which the State would deem to be prohibited obscenity. A. 215. Not surprisingly, the State declined this invitation. This makes the net effect of the obscenity statutes and the pretrial detention statutes (as the State is attempting to apply them here) very analogous to blanket civil injunc- tions prohibiting exhibition of any obscene materials. Such injunctions were roundly condemned in both Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980) and Ladoga Canning Corp. v. McKenzie, 370 So.2d 1137 (Fla. 1979).

In both these cases, the State and Federal Supreme Courts found injunctions against disseminating any obscene materials to be an unconstitutional prior restraint because they would impermissibly chill protected expression more than analogous criminal proceedings if those who would disseminate such material had “to guess at their peril which of their publications are not obscene under the criteria set forth in the

injunctions.” Ladoga, 370 So.2d at 1141.⁸ Obviously, in a civil injunctive proceeding, one is deprived of the significant protections available in a non-petty criminal prosecution (such as charges of obscenity under Florida law), e.g., trial by jury, requirement of unanimity by at least six jurors, requirement of proof beyond a reasonable doubt, etc.

Moreover, another rationale for these rulings was hinted at in Vance which is highly analogous to the circumstances of the present case. Vance concluded that someone against whom a blanket civil obscenity injunction had been imposed could be jailed for contempt prior to a final trial on the merits of the obscenity issue.⁹

⁸ Ladoga also reaffirmed that “a publication may not be suppressed merely because it contains certain poses or actions.”

⁹ See Vance, 445 U.S. at 312, n.4 where the majority rejects Justice White’s dissent observing that “[e]ven if it were ultimately determined that the film is not obscene, the exhibitor could be punished for contempt of court for showing the film before the obscenity issue was finally resolved.”

Moreover, in that same footnote, the majority indicates that even if the injunction was against exhibiting a specific named film, the danger is that such an injunction could be issued solely on a showing of a probability of success on the merits and thus, one could be jailed for contempt before the merits were ever ultimately resolved. Unquestionably, the Court was cognizant of the fact that the same procedural defect would lie if the temporary injunction was a blanket one against exhibiting any unnamed obscene film. The danger is that prior to a final determination of obscenity, the exhibitor could be punished for contempt based on a mere probable cause determination. Yet that, effectively, is precisely what has happened here.

For each of these reasons, the State’s revocation of Petitioner’s bail violated the First Amendment and Petitioner urges the Court to stay enforcement of that order pending full review of his entire habeas petition.¹⁰

II

PRE-TRIAL DETENTION FOR UNPROVEN OBSCENITY OF- FENSES UNDER THE CIRCUMSTANCES OF THIS CASE WILL, UNLESS REVERSED ON APPEAL, CAUSE AN IMPERMISSIBLY CHILLING IMPACT IN VIOLATION OF THE FIRST AMENDMENT.

¹⁰ As stated by Justice O’Connor in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), a case where the Court rejected an argument that a prior restraint was present:

“If … a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books …, the cases would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review.” Id. at 708.

Likewise here, the State has used the pre-trial detention statutes as a pretext for closing down a website because it showed allegedly obscene photos, without bothering to wait for a jury determination of whether the materials violate the applicable community standards. Clearly prior restraint analysis applies here.

Apart from the absolute prior restraint impact which the prosecution’s bail revocation tactic has already had upon the Petitioner, it also violates the First Amendment for another distinct reason, its chilling impact in deterring others not before the court from establishing or maintaining sexually oriented websites of any type, and particularly of the “user-submission” type as is involved here. Specifically, Petitioner’s alleged website is one where most, if not all, of the images on the website are provided by the public, not by the website owner, and approximately 95% of them are placed there unilaterally by approved users once they are granted access to the site.

A. 134. In essence, it is a quintessential public forum with a scope and reach that could not even have been dreamed of by the framers of the Constitution.

The significance of this type of “user-submission” website is highlighted by Petitioner’s affidavit herein which states that this particular website served a dual purpose of providing a forum for sexually explicit materials but also for photographs and video clips taken by our armed forces in Iraq and Afghanistan. A. 135-136. This latter aspect of the site apparently became increasingly popular because, once soldiers realized that their photos would be posted on the website, they sought to submit increasingly candid photos of how an actual war looks on the ground to those who are participating in it. A. 136. This serves a political purpose consistent with the most fundamental aspects of First Amendment protection as it allows an informed electorate substantial and unique additional information that would otherwise not be

available to it to assist it in evaluating the credibility of statements by its elected politicians.¹¹

In any event, if the State’s revocation of Petitioner’s bond is allowed to stand based on nothing more than the postings of allegedly obscene photos on a “user- submission” website, the State will have accomplished a remarkably chilling effect upon all similar such websites throughout Florida, if not the nation.¹² Notably, Polk County residents cannot be blocked from receiving the website content at issue. A. 132.

Moreover, the only answer to protecting “user-submission” websites from such prosecutorial tactics would be to implement a method of monitoring each and every photo posted on the website. However, as indicated in Petitioner’s accompanying affidavit, such a mechanism would die a still birth because no successful “user- submission” website system could afford the amount of personnel that would have to be employed to monitor each and every photograph submitted before it was allowed

¹¹ Indeed, Petitioner strongly believes, though cannot yet prove, that it was political pressures generated by a desire to close this aspect of the site that led to the initiation of this highly novel obscenity prosecution. Whether these beliefs can ultimately be proved or not is beside the point. It is obvious that the bail revocation statutes, as applied here, have the potential for enormous abuse of First Amendment rights, even if those are not the circumstances ultimately motivating the present prosecution.

¹² This is particularly true given the State’s effort to control Petitioner Wilson’s Internet activity even after he left the confines of Polk County and the Tenth Judicial Circuit. A. 132.

on the website. A. 134-135. In essence, “user-submission” websites have the same impossible task of self-review, except magnified by far greater numbers of items to review, than the bookseller in Smith v. California, 361 U.S. 147 (1959). (In Smith the Court held that criminal obscenity charges could not be filed based simply on a strict liability theory.¹³) However, the big difference between the two is that the user- submission website does not offer individual images for sale, and functions more as a specialized internet bulletin board. Such a medium cannot exist if it must review and self censor each item placed on there by users.¹⁴

¹³ Smith stated:

There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. 361

U.S. at 152-153.

¹⁴ As Smith went on to point out:

By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionality protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * And the bookseller’s burden would become the public’s burden, for by restricting him the public’s access to reading matter would be restricted. Id. at 153.

Also, if website users could no longer post any submissions without being subject to the prior scrutiny of the webmaster, that would deter a great percentage of all submissions, and not necessarily because of a fear of potential criminal charges, but simply due to the combinations of inconvenience, potential embarrassment, and a desire for anonymity in expression.

For each of these reasons, bail modification and/or revocation under these circumstances independently violates the First Amendment due to its impermissible chilling impact on the expressive rights of not only Petitioner, but of countless others not before the court whose rights can be asserted herein under the relaxed rules of standing applicable in First Amendment cases.

III

PRE-TRIAL DETENTION FOR ONE OR MORE UNPROVEN OBSCENITY OFFENSES IS IMPERMISSIBLE PRIOR PUNISH- MENT PROHIBITED BY THE FIRST AMENDMENT.

In discussing prior restraint cases, the Supreme Court has occasionally noted the distinction between restraints imposed prior to a final determination of obscenity, and those imposed as “subsequent punishment” only after a final determination of obscenity with all constitutional safeguards afforded to the defendant before such a determination is made. See, e.g., Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 2773 (1993): “[W]e have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments.” Given the

presumption that all expressive materials are protected by the First Amendment, defendants in obscenity cases have historically been allowed to continue distributing materials pending a final judicial determination of obscenity. See, State v. U&L Theatres, Inc., 307 So.2d 879, 881 (Fla. 3d DCA 1975) (citing precedent).

This is the first case of which undersigned counsel are aware where a state elected to impose not only a prior restraint, but went so far as to impose a prior punishment by incarcerating an individual before any materials he allegedly exhibited were ever found obscene. If prior restraints are impermissible, then, by shear force of logic, prior punishments are necessarily more so.

Finally, the requirement of subsequent punishment for expression violations serves extremely important purposes. It ensures that no punishment will be imposed until an appropriately instructed jury of the defendant’s peers has the opportunity to evaluate the allegedly obscene materials and determine for themselves whether those materials violate the applicable community standards.

A court, sitting without a jury, may constitutionally make civil determinations of obscenity calculated to provide advance notice. However, because the determina- tion of obscenity is based upon assessment of community standards, it is indispens- able, where one’s liberty is at stake, that such determinations of community standards be made by a jury of one’s peers representing a fair cross-section of the community.

Although the Supreme Court has never directly ruled on this specific issue, in the case of Ballew v. Georgia, 435 U.S. 223 (1978), the Court concluded that an obscenity conviction returned by a unanimous five member jury violates the Sixth Amendment (holding that a minimum of 6 is required) and thus found it unnecessary to determine whether a six member jury is independently required in an obscenity case as a matter of First Amendment law. However, the Court strongly intimated that such would be the case:

We do not rely on any First Amendment aspect of this case in holding the five-person jury unconstitutional. Nevertheless, the nature of the substance of the misdemeanor charges against petitioner supports the refusal to distinguish between felonies and misdemeanors. The application of the community’s standards and common sense is important in obscenity trials where juries must define and apply local standards. [Citation omitted.] The opportunity for harassment and overreaching by an overzealous prosecutor or a biased judge is at least as significant in an obscenity trial as in one concerning an armed robbery. This fact does not change merely because the obscenity charge may be labeled a misdemeanor and the robbery a felony. 435 U.S. at 241, n.33.

For these reasons, any punishment imposed for engaging in allegedly illegal expression prior to a conviction of such charges, affording full due process rights, would constitute a violation of the First Amendment.

IV

WHERE, AS HERE, IMMEDIATE RELIEF IS REQUIRED TO PREVENT CONTINUATION OF AN ONGOING PRIOR RESTRAINT, THE SUPREME COURT HAS RECOGNIZED THAT IN THE ABSENCE OF IMMEDIATE APPELLATE REVIEW, A STAY SHOULD BE AVAILABLE AS A MATTER OF RIGHT.

Pending this Court’s consideration of Petitioner’s full petition for writ of habeas corpus, the State’s ongoing de facto prior restraint of his website causes ever- increasing First Amendment damage. For example, each day that his website remains closed down will be an additional day when more users of that website learn, for the first time, that the website is closed. Such users may never return due to their lack of any basis for concluding that it will be reopening. Consequently, the First Amendment injury is not only immediate, but grows greater with each continuing day of this restraint.

Where, as here, Respondents have caused an ongoing prior restraint, substantial Supreme Court precedent recognizes that if immediate appellate review of the restraint is not available, the petitioner is entitled to an interim stay as a matter of right until the reviewing court can provide full appellate review of the restraint. See, e.g., National

Socialist Party of America v. Village of Skokie, 432 U.S. 43, 44, 97 S.Ct. 2205, 2206,

53 L.Ed.2d 96 (1977), stating:

If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, [citation omitted] including immediate appellate review . . . . Absent such review, the State must instead allow a stay.

Likewise, in M.I.C., Ltd. v. Bedford Township, 463 U.S. 1341, 1343, 104 S.Ct.

17, 18, 77 L.Ed.2d 1442 (1983), under circumstances remarkably similar to the present ones, Justice Brennan, acting in his capacity as Circuit Justice, issued emergency injunctive relief on behalf of the owner of a theater subject to a preliminary injunction enjoining it from exhibiting unnamed and allegedly obscene films. Justice Brennan held:

But here, as in National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 44, 97 S.Ct. 2205, 2206, 53

L.Ed.2d 96 (1977), and Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1329-1330, 96 S.Ct. 251, 253-254, 46 L.Ed.2d

237 (1975) (Blackmun, J., in Chambers), the State’s highest Court has refused either to lift the challenged restraint or to provide for immediate appellate review. Such a failure indicates that the state court has decided finally to maintain the restraint in effect during the pendency of review. In this situation, I have no doubt that a Justice of this Court has full power to issue a stay.

Faced with situations similar to that presented here, this Court has repeatedly required that when a State undertakes to shield the public from certain kinds of expression it has labeled as offensive, it must ‘provide strict procedural safeguards . . . including immediate appellate review.

Absent such review, the State must instead allow a stay.'” 463 U.S. at 1342-1343, 104 S.Ct. at 18.

See also Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 96 S.Ct. 237, 46 L.Ed.2d 199

(1975); and Nebraska Press Assoc. v. Stuart, 423 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d

237 (1975).

For all the reasons above, prior to this Court’s review of the full merits of Petitioner’s entire Habeas Petition, issuance of an immediate stay is necessary to prevent ongoing injury to First Amendment rights.

CONCLUSION

For all the reasons above, pending this Court’s full review of his entire accompanying Habeas Petition, the First Amendment entitles Petitioner to a stay of the trial court’s bond revocation order and to an interim injunction preventing any further bond revocation motions where the basis for such motions consists of nothing other than additional unproven allegations of obscenity violations.

WHEREFORE, Petitioner requests that the court grant emergency, preliminary relief as follows:

1. Grant a stay of the lower court’s bond revocation order;

2. Order immediate release of the Petitioner and reinstate his original bond pending a full determination of the Petition on the merits; and

3. Prevent Respondent STATE ATTORNEY from seeking any future bond revocation based on allegations of new obscenity offenses based on materials that have not been determined obscene in final judicial action.

JOHN H. WESTON

California State Bar No. 46146

Pro Hac Vice application pending

G. RANDALL GARROU California State Bar No. 74442 Pro Hac Vice application pending

LAWRENCE G. WALTERS

Florida Bar No.: 0776599

WESTON, GARROU, DeWITT & WALTERS

By LAWRENCE G. WALTERS

781 Douglas Avenue

Altamonte Springs, Florida 32714 Voice: (407) 389-4529

Fax: (407) 774-6151

Attorneys for Petitioner WILSON

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been sent via overnight delivery to: Charlie Crist, Florida Attorney General, The Capitol PL-01 Tallahassee, FL 32399; Bradford Copley, Esquire, Polk County State Attorney’s Office, 255 North Broadway, Second Floor, Bartow, FL 33830, Sheriff Grady Judd, Polk County Sheriff’s Office, 455 North Broadway Avenue, Bartow, FL 33830, and Richard D. Mars, Esquire, 343 West Davidson St., Suite 103, Bartow, FL 33831, this 20th day of December, 2005.

THE SILVER LINING?

Looking for the ‘good’ in §2257

By: Lawrence G. Walters Weston, Garrou, DeWitt & Walters

www.FirstAmendment.com

With all of the industry outcry and vociferous objections to the recently-amended Section 2257 regulations, many in the industry have failed to recognize that this otherwise burdensome legislation may have some unintended positive effects. While the entire statute may be unconstitutional, and the courts should certainly strike down portions of the regulations as invalid, the law may provide some unintended and unexpected benefits for the adult entertainment industry.

Industry experts have long been preaching about the positive aspects of 2257 compliance such as the creation of defenses against child pornography charges. In essence, if a webmaster or content producer complies with 2257, he or she should never be successfully prosecuted for child pornography. Theoretically, it is possible for a minor to slip through the cracks by presenting a forged driver’s license or passport, but given the criminal intent requirements¹ associated with child pornography violations, 2257 compliance should provide a defense to all but the most egregious violations involving the knowing use of a minor in explicit imagery.² However, the creation of a specific mechanism for the commercial production of sexually explicit content may result in more than just a defense to child pornography. Read on…

¹ See U.S .v. X-citement Video, 513 U.S. 64, 115 S.Ct. 464, 63 USLW 4019, 130 L.Ed.2d 372 (1994) [criminal intent as to model’s age required for most child pornography offenses, even if not specifically written into the law.]

² Nothing contained in this article constitutes legal advice on child pornography offenses or any other legal issue. Please consult with your personal attorney if anything in this article impacts you.

Since the proliferation of digital cameras and cheap webcams, the creation of sexually explicit materials has spread from the valleys of southern California to virtually every state, county and city throughout the United States of America. The adult industry flourished in the State of California during the 1970’s and 80’s as a result of a California Supreme Court decision holding that the state’s “pandering” laws could not be enforced against those involved in the production of commercial erotica, consistent with the state constitution.³ However, that decision is only binding in the State of California, and despite popular perception, it provides no protection for the countless photographers, cam girls and other content producers located in the other 49 states. That leaves non-California content producers in a state of legal limbo as to whether their activities are constitutionally protected, or whether they fall within traditional notions of prostitution wherein individuals are hired to perform sexual activity. Until recently, this issue remained under the radar as most professional adult production companies set up shop in Southern California. However, the legality of erotic content production will now likely confront one or more courts outside of California, as law enforcement and prosecutors grow bolder in their fight to preserve “societal decency” and garner political support while using the adult industry as a scapegoat.

Enter Section 2257: The federal government may have unwittingly, yet formally, legalized and authorized the creation of hardcore adult materials, so long as 2257’s age verification procedure is followed. After all, Section 2257, and its implementing regulations found at 28 C.F.R. § 75 et. seq., specifically contemplate the commercial production and display of depictions of actual human beings engaged in various forms of sexual activity; even including bestiality. Law enforcement would be hard-pressed to prosecute content producers who strictly followed the dictates of 2257’s records compilation and maintenance requirements, for any sort

³ People v. Freeman, 250 Cal. Rpt. 589 (Cal. 1988) U.S. cert. den. 488.S.311(1988).

of prostitution-related offense based on the activity that is specifically defined and regulated in federal statutes and regulations. In other words, how could the U.S. government authorize and regulate the creation of commercial adult materials if such activity constituted an obvious violation of the country’s prostitution, solicitation, or assignation laws? In fact, it appears that the government has conceded that the adult industry may legitimately create depictions of actual sexually explicit conduct so long as it follows the rules in doing so.

It is just this sort of legitimacy that right wing conservative groups have feared all along. Recently, the Family Research Council objected to the adoption of a .xxx tld for the adult industry since it feared that such actions would legitimize the adult web and end up providing adult sites with de facto protection from obscenity prosecutions.⁴ Similarly, the Concerned Women of America has objected to zoning ordinances for brick and mortar adult entertainment establishments on the same theory, i.e., that such laws lend legitimacy to adult businesses. In its effort to strictly regulate the adult industry, Congress and the Department of Justice may have provided just the sort of legitimacy that these groups fear. Even obscenity prosecutions may be rendered more difficult for the prosecutors as a result of the 2257 regulations. Certainly, in order to pursue such a prosecution, the government would need to prove that something beyond the depiction of actual sexually explicit conduct occurred since such activities are impliedly licensed by the federal regulations.

State prosecutors may face even more difficulty in pursuing adult content producers for violations arising out of the creation of adult material given the legal concept of “federal preemption.” When the federal government decides to regulate a specific field or industry, any inconsistent state laws may be rendered invalid to the extent they attempt to inconsistently regulate that same field.⁵ Federal preemption can be explicitly stated in the statute’s language, or implicitly contained in the structure and purpose of the regulatory scheme.⁶ The nuances of federal preemption are beyond the scope of this article, however it suffices to say that the enactment of Section 2257, and the recent adoption of the amended regulations give potential defendants in state prosecutions a new set of arguments and defenses given the apparent permission to create adult materials granted by federal law.

Imagine the look on the face of the sheriff or prosecutor when he first learns that his well- thought-out sex crime prosecution against an adult content producer in Small Town America may be gutted by the existence of a specific federal statutory procedure authorizing the creation of sexually explicit imagery. Anecdotal evidence already exists of local law enforcement agents’ ignorance of Section 2257 and associated regulations of the adult industry. Given the government’s obvious intent to create one specific and recognized method for producing adult materials, the industry may have gained significant protections against state level prosecutions for prostitution or even obscenity related offenses. While this may come as little comfort for those content producers and webmasters struggling to comply with the burdensome dictates of the new records keeping regulations, the industry must always strive for legitimacy and mainstream recognition. Section 2257 may be just the vehicle for that to occur.

© Lawrence G. Walters (2005)

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been

⁵ Preemption derives from the Supremacy Clause, Article VI, Clause 2 of the United States Constitution; see, English v. General Elec. Co., 496 U.S. 72, 70-79, 110 S.Ct. 2270, 110 L.Ed. 2d., 65 (1990) [Enumerating the three circumstances in which state law is preempted under the Supremacy Clause as: 1) where Congress explicitly defines the extent to which its enactments preempt state laws; 2) where a state law regulates conduct in a field that congress intended the federal government to occupy exclusively; and 3) to the extent that state law actually conflicts with federal law.]

⁶ Moralis v. TransWorld Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”

OBSCENITY IN THE DIGITAL AGE: THE RE-EVALUATION OF COMMUNITY STANDARDS

By: Lawrence G. Walters, Esq. and Clyde DeWitt, Esq.

Weston, Garrou, DeWitt & Walters

Introduction

Constitutionally protected erotic expression “is often separated from obscenity only by a dim and uncertain line.”¹ That line is the tripartite test articulated in 1973 by a quintet of Supreme Court decisions, the centerpiece of which was Miller v. California.² The Miller Test determines whether a speaker should be hailed as a contributor to the marketplace of ideas or jailed like a common criminal. Due to the inherent vagueness of the Miller test, in a 1977 obscenity case, Supreme Court Justice Powell identified that “the dicey business of marketing [adult] films [is] subject to possible challenge.”³ Given the 2003 PROTECT Act’s ratcheting up of the minimum sentences for federal obscenity convictions⁴ and the Supreme Court’s 1993 approval of wholesale forfeitures for as few as two related obscenity convictions, the stakes are significantly higher now.⁵

Generally, the Miller test holds that, in order to strip erotic speech of its presumed constitutional protection so that the disseminator may be punished, a prosecutor must establish, in very general terms, that the materials at issue (a) appeal to the prurient interest in sex, (b) contain patently offensive representations of nudity or sexual activities, and (c) lack serious artistic, scientific, or literary value. While the particulars of each of those prongs of the Miller test are beyond the scope of this article, what is important here is that prong (a) and prong (b)both are a function of “local community standards;” prong (c) is not a function of community standards, but rather what a “reasonable person” would conclude.⁶ This article questions the definition of “community” in this day and age, when online communities have blurred all past definitions of that term. In short, what is a “community” in the Internet era?

In the context of sale of three-dimensional objects such as books and films, the concept of “community standards” is hopelessly unworkable. It is even more cumbersome in the environment of the Internet. Any recognizable definition of a “local community” is quickly disappearing in the age of ubiquitous and homogenous media brought about by satellite and cable television, international news channels, and more recently, the Internet. Yet prosecutors, and to some extent the courts, have continued to cling to the archaic notion of “contemporary community standards” as measured by local geographic boundaries. As the United States, and indeed the world, becomes more transient, standardized, uniform, and homogenized, the ability of one community to isolate itself by erecting a fictitious legal barrier, designed to keep out certain categories of erotic speech, is quickly evaporating and the law must keep pace.⁷

The time has come for courts to accept the diminished reality of local geographical standards and the development of a variety of national communities, whose standards must be considered in the context of American obscenity law. Assuming the Miller test is not too vague for the imposition of criminal sanctions in every instance – 4 of the 9 Justices in the Miller quintet believed it was⁸ – the definition of “community” must be reexamined given the realities

⁶ Pope v. Illinois, 481 U.S. 497 (1987).

⁷ Ironically, in Miller, 413 U.S. at 32, despite the rapid homogenization of the country that was developing then due to migration and national communication, the Court moved from the then-prevailing view that obscenity should be

measured by a national standard to local standards, Chief Justice Burger explaining, “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”

⁸ Justice Brennan’s dissent in Miller, 413 U.S. at 47, incorporating his dissent in Paris, 413 U.S. at 73, makes a

powerful case for the proposition that obscenity cannot be measured with sufficient specificity to adhere to the Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution and, indeed, nearly carried the day.

of the current decade. Although a complete reassessment of the local community standards requirement of the Miller test is certainly justifiable with respect to all forms of erotic media, the most timely place for such recognition to evolve is in relation to Internet content, which does not exist in any geographic space, and which cannot be blocked from receipt by any particular, local community.

2. The Miller Test in Cyberspace

1. Reno v. ACLU

The first opportunity the United States Supreme Court took to consider application of the Miller Test in the context of online content was in response to the challenge brought by the American Civil Liberties Union to the Communications Decency Act of 1996 (“CDA”).⁹ At issue were provisions of the CDA that prohibited the transmission of “indecent” communications by means of a telecommunications device to persons under the age of 18, or sending patently offensive communications through use of an interactive computer service to persons under the age of 18.¹⁰

The Supreme Court invalidated the CDA in a unanimous decision. Finding that it

constituted a content-based regulation of speech, the Court subjected the CDA to the strict scrutiny standard of review.¹¹ The Court found that the act’s lack of a precise definition of prohibited behavior would create confusion as to what was truly prohibited,¹² and due to the “obvious chilling effect on free speech” the CDA was void for vagueness.¹³ The potential stigma of a criminal conviction and the severe penalties including up to two years’ imprisonment for

⁹ Reno v. ACLU, 521 U.S. 844 (1997).

¹⁰ 47 U.S.C. § 223 (a, d) (2002).

¹¹ Reno v. ACLU at 872.

¹² Reno v. ACLU at 871 (noting that serious discussions about birth control practices, homosexuality, First Amendment issues raised by the Appendix to the Pacifica opinion (438 U.S. 726), or the consequences of prison rape might be perceived by speakers or law enforcement as violating the CDA).

¹³ Reno v. ACLU at 872 (citing e.g. Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-1051 (1991)).

each violation would likely cause speakers to remain silent rather than approach the zone of impermissible conduct.¹⁴

The government argued that although the CDA regulated speech that was not deemed harmful to adults, but was deemed harmful to children, precedent supported such regulations. The government specifically relied on Ginsberg v. New York,¹⁵ City of Renton v. Playtime Theatres Inc,¹⁶ and Federal Communications Commission v. Pacifica Foundation.¹⁷ However, the Court held that these cases actually supported the ACLU’s position rather than that of the government.¹⁸

The Ginsberg decision permitted the government to restrict the commercial sale of materials deemed “harmful” in the hands of a minor, but merely “indecent” in the hands of an adult. However, the law reviewed in Ginsberg did not bar parents from acquiring prohibited materials for their children. Under the CDA, parental consent or even parental participation in

the acquisition of material on AIDS prevention could still hold the provider of that information criminally liable.¹⁹ Furthermore, the Ginsberg case applied only to commercial transactions, and the material was required to be “utterly without redeeming social importance for minors.”²⁰ The CDA has no such limitations.

Renton dealt with a zoning ordinance that prohibited adult movie theaters from residential neighborhoods in an attempt to minimize secondary effects of such businesses. The target of the

¹⁴ Reno v. ACLU at 872 (citing e.g. Dombrowski v. Pfister, 380 U.S. 479, 494 (1965)).

¹⁵ 390 U.S. 629 (1968) (Government was permitted to forbid the sale of materials to minors not obscene to adults because the state has an independent interest in the welfare of its youth and the right of parents to regulate the

content of material consumed by children in their household).

¹⁶ 475 U.S. 41 (1986) (The Court upheld zoning ordinances designed to keep pornographic theaters out of residential areas).

¹⁷ 438 U.S. 726 (1978) (Upheld FCC sanctions administrative sanctions against a radio station that broadcast George

Carlin’s “seven dirty words” routing because the words were deemed offensive in the context of an afternoon broadcast with children in the audience).

¹⁸ Reno v. ACLU at 864.

¹⁹ Reno v. ACLU at 865.

²⁰ Id at 867.

regulations was not the speech itself, but crime and diminished property values.²¹ The government’s contention that it was merely engaging in a zoning of cyberspace was rejected due to the fact that the CDA applied to all of cyberspace.²² Upholding this reasoning would have been analogous to the government placing a zoning ordinance from Key West to Kodiak, while asserting that it was not a blanket provision.

Pacifica was distinguished by the Court in that the FCC had a history of regulating radio content and the broadcast targeted was “a significant departure from traditional program content.”²³ The FCC regulations were “time, place, and manner” restrictions, and not blanket prohibitions on speech.²⁴ Finally, and most importantly, the Court distinguished radio from the internet as a medium because of radio’s potential to invade the home unchecked, whereas a series of affirmative steps is required in order to receive internet content.²⁵ In addition, its analysis that the Internet is not radio’s younger brother comes from the recognition that radio’s scarce number of frequencies make each channel a public resource.²⁶ The Internet’s boundless size defies the importation of radio’s rules.²⁷ The Court’s wisdom in refusing to apply rules properly shackled upon a medium developed in the age of the horse and buggy should not be cast aside in its discussion and application of the term “Community.”

The Court’s decision in Reno began the slow descent into a swirling morass of online censorship jurisprudence, which has plagued the High Court ever since, and has yet to be

²¹ Id at 867.

²² Id at 868.

²³ Id at 867.

²⁴ Id.

²⁵ Id.

²⁶ See id. at 870 citing Red Lion Broad Co. v. FCC, 395 U.S. 367, 399-400 (1969).

²⁷ Id.

resolved.²⁸ Although this early case (1997) involved only one prong of the Miller Test, pertaining to patently offensive material, the Court took the opportunity to compare the elements of the Miller Test to those used by the CDA.²⁹ The Court noted that the CDA criminalized all patently offensive communications, whereas the Miller Test significantly limited the scope of materials not protected by the First Amendment by requiring that “the [offensive materials also] appeal to the prurient interest, and…lack serious literary, artistic, political or scientific value.”³⁰ In noting the “wholly unprecedented” scope of the CDA as defining a new category of criminal speech, a unanimous Supreme Court struck down the challenged portions of the law as overbroad and a violation of the First Amendment.³¹

2. Revisiting Miller v. California

A brief review of the basic requirements of the Miller Test is in order: In 1973, the United States Supreme Court finally settled on a definition of “obscenity,” for purposes of regulating erotic materials, after much wrestling, agonizing and debate.³² Notably, Miller was a 5-4 decision that reportedly went the other way on the first vote. The dissenters took the position that regulation of erotica involving only adults could not be accomplished without violating the

Bill of Rights. The compromise reached in Miller gave us the “basic guidelines” that the trier of fact must apply in cases involving allegedly obscene materials:

1. [W]hether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;

2. [W]hether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

²⁸ Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Ashcroft v. American

Civil Liberties Union, 532 U.S. 1037, 121 S.Ct 1997, 149 L.Ed.2d 1001 (2001); Ashcroft v. American Civil

Liberties Union, _ U.S. _, 124 S.Ct 2783, 159 L.Ed.2d 690 (2004)

²⁹ Reno, 521 U.S. at 873-74.

³⁰ Id. at 873 (internal quotation marks and citations omitted).

³¹ Id.

³² Miller, 413 U.S. 15.

3. [W]hether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.³³

The federal statutes governing obscenity, including a part of the CDA not at issue in Reno, incorporate that definition in an effort to separate unprotected criminal speech from expression protected by the First Amendment. The concept of “local community standards” applies only to the first two prongs of the test involving prurient interest and patent offensiveness.³⁴ A jury applies its understanding of the standards of the local community from which it comes to decide whether that community accepts, or at least tolerates, the erotic materials at issue. Therefore, the specific geography chosen for prosecution is inextricably linked to the determination of whether the material is sufficiently “sexual” and “offensive” enough to constitute obscenity.³⁵

3. Miller as an Anachronism

The primary justification for the community standards test is to ensure jurors view the material from the perspective of the average adult, rather than from that of the most sensitive or susceptible member of the community.³⁶ Secondarily, the community standards test purportedly attempts to preserve the rights of states and their respective communities to define, for themselves, what level of erotic speech is to be tolerated within a specific geographic area.³⁷

However, little guidance has been provided by the courts as to the proper geographic contours of the “community” to be used in evaluating allegedly obscene works. In Hamling v.

³³ Miller, 413 U.S. at 24 (internal quotation marks and citations omitted).

³⁴ Smith v. United States, 431 U.S. 291, 301 (1977) (indicating that community standards tests should be used to judge patent offensiveness).

³⁵ Nitke v. Ashcroft, 253 F.Supp.2d 587, 601 (S.D.N.Y. 2003).

³⁶ Ashcroft v. ACLU, 535 U.S. 564, 575 (2002) (Plurality opinion). See generally Pinkus v. United States, 436 U.S.

293 (1978).

³⁷ Miller, 413 U.S. at 32; Jacobellis v. State of Ohio, 378 U.S. 184, 197-98 (1964) (Warren, C.J., dissenting)

(although decided before Miller approved the societal value prong, Miller quoted with approval Chief Justice Warren’s observations in this case).

United States³⁸ and elsewhere,³⁹ the High Court has indicated trial courts may actually define the relevant community for the jury, or allow jurors to determine for themselves where the geographic boundaries of the community lie. This stunning lack of guidance on such an important element of the Miller Test has resulted in widely varying “communities” being used by various courts at different times. For example, the Supreme Court in Miller v. California⁴⁰

approved an area comprising the entire State of California as an acceptable community from

which jurors could draw inferences as to the proper standards in an obscenity case. In other cases, lesser geographic areas have been approved, as small as a single county within a state⁴¹ or a tri-county area.⁴² Using this approach, the community standards test simply results in the application of “local” attitudes as a result of a limited geographic area, typically that from which the jury is drawn, but there is no requirement that the “community” be made up of any specific geographic space.⁴³

The nature of the test therefore contemplates that material encompassed within its definition may be found criminally obscene in one jurisdiction, whereas the very same material may be found to constitute protected speech in another.⁴⁴ However, this result was not found to be problematic by the Supreme Court, which held that the existence of a federal statute incorporating varying community standards did not chill speech to such an extent so as to render

³⁸ Hamling v. United States, 418 U.S. 87, 104-06 (1974).

³⁹ Jenkins v. Georgia, 418 U.S. 153, 157 (1974).

⁴⁰ Miller, 413 U.S. at 30-31.

⁴¹ Davison v. State, 288 So.2d 483, 487 (Fla. 1973) (rejecting consideration of the community standards of the entire state).

⁴² Skywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 587-88 (S.D. Fla. 1990) (holding that the appropriate community to be considered was the geographic area comprising Broward, Palm Beach and Dade Counties).

⁴³ Hamling, 418 U.S. at 104-05.

⁴⁴ Miller, 413 U.S. at 32. In fact, there have been instances where the same motion picture has been found obscene

by one jury and not obscene by another – in the same city, same courthouse and before the same judge, with the two trials occurring within weeks of each other.

the statute unconstitutional.⁴⁵ Thus, publishers and speakers are left with little guidance as to which geographic community’s standards will be applied in determining whether the speaker’s expression is protected by the First Amendment or treated as criminal conduct.

Enter the World Wide Web. The Internet has been called “the most participatory form of mass speech yet developed.”⁴⁶ According to the Court, the Web is a “unique and wholly new medium of worldwide human communication.”⁴⁷ Significant distinctions exist with regard to online communications as opposed to more typical broadcast or print media. “[T]he vast democratic [forums] of the Internet” have not historically been subject to the type of governmental regulation and supervision that has been upheld in relation to the broadcast and print industry.⁴⁸ One of the primary reasons for this difference in degree of regulation is the fact that the Internet is not as intrusive on the viewer or listener as is radio or television.⁴⁹ It has been specifically held that “communications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter [Internet] content ‘by accident.’”⁵⁰

Importantly, it has been held that each medium of expression must be analyzed in terms of its own unique elements, and may present its own problems.⁵¹ For example, certain justifications for regulation of the broadcast media have been held to be not applicable to other speakers.⁵² In earlier cases, courts have relied on the history of extensive governmental

⁴⁵ Hamling, 418 U.S. at 106.

⁴⁶ Reno v. ACLU, 521 U.S. 844, 863 (1997) (quoting ACLU v. Reno, 929 F.Supp 824, 883 (E.D. Pa. 1996)).

⁴⁷ Reno v. ACLU, 521 U.S. at 850.

⁴⁸ Id. at 869 n.33.

⁴⁹ Id. at 869.

⁵⁰ Id. (citing ACLU v. Reno, 929 F.Supp at 844 (E.D. Pa. 1996)).

⁵¹ Southeast Promotions, LTD. v. Conrad, 420 U.S. 546, 557 (1975); ACLU v. Reno, 217 F.3d 162 (3^rd Cir. 2000),

cert. granted by, Ashcroft v. ACLU, 532 U.S. 1037 (2001), vacated by, Ashcroft v. ACLU, 535 U.S. 564 (2002), remanded to, ACLU v. Ashcroft, 322 F.3d 240 (3^rd Cir. 2003), cert. granted by, Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004).

⁵² Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

regulation of the broadcast media, the scarcity of available frequencies, and the invasive nature of radio and television as a basis for regulation of content.⁵³ In other cases, dealing with obscene telephone messages, the Court has noted that placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message.⁵⁴ Those distinctions alone warrant a fresh approach when it comes to application of community standards to online media.

Notably, the community standards test was developed at a time when obscenity prosecutions were primarily localized in nature and distributors intentionally chose the geographic areas in which they distributed or displayed their material.⁵⁵ Purveyors of adult materials could at least theoretically evaluate the particular community standards applicable in a given jurisdiction, and make a considered, intelligent decision whether to disseminate those

materials in a given locality, based on the results of their investigation. The presence of multiple retail outlets where comparable materials may be rented or purchased by the public may heavily impact a distributor’s decision to make certain erotic materials available in a given community, for example. The existence of a particularly conservative jurisdiction had no impact on the print

media distributor’s ability to sell or display erotic materials in more liberal jurisdictions, given this ability to pick and choose distribution points.⁵⁶ This theoretical ability to “geotarget” distribution of traditional adult materials formed the rational foundation for the earlier federal obscenity cases.⁵⁷

⁵³ Red Lion, 395 U.S. at 399-400; Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638, (1994); Sable

Communications of California v. FCC, 492 U.S. 115, 128 (1989).

⁵⁴ Sable Communications, 492 U.S. at 128.

⁵⁵ E.g., Paris Adult Theatre No. I v. Slaton, 413 U.S. 49, 58, (1973).

⁵⁶ Nitke, 253 F.Supp.2d at 603.

⁵⁷ Id.; Hamling, 418 U.S. at 106.

Where online speech is involved, distributors have no reliable means of limiting the geographic distribution of erotic materials on the Internet.⁵⁸ The Internet does not function in relation to the physical, geographic world, and these crucial differences between the “brick and mortar” and cyber dimensions affect the First Amendment analysis. “The Internet is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location.”⁵⁹ Those considerations require a dramatically different First Amendment analysis in the context of application of a community standards test to online media. As observed by the Third Circuit Court of Appeals, “the unique factors that affect communication in the new and technology-laden medium of the Web [create] crucial differences between a brick and mortar outlet, and the online Web that dramatically affect a First Amendment analysis.”⁶⁰ Unlike traditional retail outlets for erotica, the Web is not “geographically constrained,” rendering geography a virtually meaningless concept when it comes to the Internet.⁶¹

The United States Department of Justice (“DOJ”) currently takes the position that

Internet content can be prosecuted in any jurisdiction from where it is sent, through which it

⁵⁸ ACLU v. Reno, 217 F.3d 162, 175 (3^rd Cir. 2000) (“Web publishers are without any means to limit access to their sites based on geographic location of particular Internet users.”); Ashcroft v. ACLU, 535 U.S. 564, 575 (2002) (Plurality opinion); Nitke, 253 F.Supp.2d at 603. Although various geotargeting software devices have been made available in recent times, none have proved effective at blocking a geographic area as small as a county, as would be required to avoid exposure to obscenity prosecutions based on a particular county’s conservative community standards.

⁵⁹ Cyberspace Communications, Inc., v. Engler, 55 F.Supp.2d 737, 744 (E.D. Mich. 1999), aff’d., 238 F.3d 420 (6^th

Cir. 2000), summ. judg. granted same grounds, 142 F.Supp.2d. 827 (E.D. Mich. 2001).

⁶⁰ ACLU v. Reno, 217 F.3d 162, 174-175 (3^rd Cir. 2000) (quoting Reno v. ACLU, 31 F.Supp.2d 473, 495 (E.D. Pa.

1999)) (internal quotation marks omitted).

⁶¹ That is not to say the community-standards test did not wreck havoc on national distributors of traditional erotic

media. Where distribution was national, the distributor was effectively responsible for learning the community standards of hundreds of divisions of the 93 federal judicial districts, the statewide standards of such diverse states as Illinois, Texas, and California, which all embrace standards of the entire state, and the various counties of states such as Florida and Indiana, where county standards apply. As difficult as it is to predict the standards of one’s own community, expecting anyone to predict the standards of hundreds of other communities is totally unrealistic. Worse, there is no way to judicially learn the standards in advance. Adult Video Ass’n. v. United States Dept. of Justice, 71 F.3d 563 (6^th Cir 1995) (upholding the trial court’s refusal to issue a declaratory judgment as to whether a particular motion picture was obscene.).

passes, or where it is received.⁶² For example, in one of the most recent federal obscenity prosecutions against an adult Web site operator, the defendants were prosecuted in the Western District of Pennsylvania, despite the fact that they operate their website from, reside in, and, with respect to the relevant transactions, never left the State of California.⁶³ One of the counts against the defendants in that case involved transmitting allegedly obscene video clips to computers in

the Western District of Pennsylvania, where the materials were downloaded by government agents.⁶⁴ Therefore, this concern is real, not conjectural. People will go to jail or be set free depending on the ultimate resolution of the “community standards” issue. Historically, the DOJ has ordinarily prosecuted obscenity cases in the place of receipt, which is almost always more conservative than the place from where the material was sent.⁶⁵

The government’s position on local community prosecution raises a significant constitutional concern, often called a “heckler’s veto.” Purveyors of adult material online cannot comply with the CDA, which prohibits distribution of obscene materials online, or any other law premised on application of local community standards, by tailoring their speech to each individual community’s standard. In order to offer erotic materials online, those materials must

⁶² United States v. Thomas, 74 F.3d 701 (6^th Cir. 1996), cert. den. 519 U.S. 820 (1996) (holding venue proper in district from which viewer accessed defendant’s bulletin board files); Memorandum of Law in Support of Motion to Dismiss, filed in Nitke v. Ashcroft, et. al., Case No. 01-Civ-11476 (S.D.N.Y. 2002) (noting that a prosecution for sending obscene material from one place to another is appropriate in the district from which it was sent, the district in which it is received, or any district through which it passes). See also Ashcroft v. ACLU, 535 U.S. at 601 (“[P]rosecution may be proper ‘in any district in which [an] offense was begun, continued, or completed.’” (quoting 18 U.S.C. §3237(a))). Thus, “it seems likely that venue would be proper where the material originates or where it is viewed.” Ashcroft v. ACLU, 535 U.S. at 602.

⁶³ United States v. Extreme Associates, Inc., et. al., 2005 W.L. 121749 (W.D. Pa. January 20, 2005).

⁶⁴ Id. The trial court in the above-referenced case ultimately dismissed all of the counts, finding that the federal obscenity law is unconstitutional. The court reasoned that the government failed to meet its burden of demonstrating

the existence of a compelling governmental interest to justify the restrictions on speech in light of the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), which, as interpreted by this Court, prevented the government from using the establishment of a “moral code” as a justification for obscenity laws. That decision is likely to be appealed by the government, and the issue of which community’s standards to apply was never resolved. ⁶⁵ In a spate of obscenity prosecutions in the late 1980s and early 1990s targeting adult video manufactures in Los Angeles, prosecutions materially all were brought in the conservative jurisdiction to which the materials were shipped, including Oklahoma City, Dallas, Tallahassee, Memphis and Flagstaff, Arizona.

be compliant with the lowest common denominator – the most conservative community’s standards – given that all online materials are contemporaneously available in every community.⁶⁶ That is so because the Internet publisher cannot avoid distributing to more restrictive areas.⁶⁷ Publishing materials for viewing by any community makes them available for all. In order to avoid liability under a law based on local community standards, the Internet publisher would need to severely censor its publications to comply with the most conservative of communities.⁶⁸

Sent back to the drawing board by the Supreme Court when it rejected the CDA, Congress made a second attempt to “clean up the internet” by drafting the Child Online Protection Act (COPA). Before the ink was dry on President Clinton’s signature, the same groups that challenged the CDA filed suit seeking an injunction enjoining enforcement of the

COPA, on the grounds that it was overbroad and restricted adult access to constitutionally protected material.⁶⁹

In the district court opinion granting injunctive relief against COPA, the court found that the act created an “impermissible risk of suppression of ideas.” As an example, the court used the site of Mitchell Steven Tepper, operator of the Sexual Health Network, which provides information about sexuality to the disabled for profit. Tepper’s site is clearly beyond what Congress sought to prohibit, but was just as clearly in violation of COPA.⁷⁰

⁶⁶ Nitke, 253 F.Supp.2d at 604.

⁶⁷ ACLU v. Reno, 217 F.3d 162, 169-170 (3^rd Cir. 2000), rev’d on other grounds, Ashcroft v. ACLU, 532 U.S. 1037

(2001), vacated by, Ashcroft v. ACLU, 535 U.S. 564 (2002), remanded to, ACLU v. Ashcroft, 322 F.3d 240 (3^rd Cir. 2003), cert. granted by, Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29, 2004).

⁶⁸ Id. at 174

⁶⁹ See Kelly M. Doherty, www.obscenity .com: An Analysis of Obscenity and Indecency Regulation on the Internet, 32 AKRON L. REV. 259, 280 (1999).

⁷⁰ See Reno II at 485.

Despite Congressional intent to limit only minor access to commercial pornography, nothing in the text of COPA did so, and the term “commercial pornographers” never appeared in the statute.⁷¹ Just as its parent, the CDA “burned down the house to roast the pig,” COPA had identical pyromaniac tendencies.

The concern with the “heckler’s veto” caused the Third Circuit Court of Appeals to invalidate COPA, which also incorporated the community standards test to determine which online materials must be accompanied by some form of age-verification device.⁷² While the United States Supreme Court ultimately determined that this constitutional concern, by itself, did not render the statute substantially overbroad for purposes of the First Amendment, it did

generate a significant degree of concern among at least six United States Supreme Court Justices as to how local community standards could be applied to Internet communications.⁷³ For example, Justice O’Connor, in her concurrence, stated:

I agree with Justice Kennedy that, given Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount

of expression.⁷⁴

Justice O’Connor further opined that adoption of “national standards” may indeed be appropriate in cases involving online media.⁷⁵ Although noting that Supreme Court precedent does not forbid adoption of a national standard, she also observed that Miller called such standards potentially “unascertainable,”⁷⁶ and “unrealistic.”⁷⁷ If generalizations about the standards applicable to the people of a state of the size and diversity of California were

⁷¹ See Reno II at 480.

⁷² ACLU v. Reno, 217 F.3d 162 (3^rd Cir. 2002).

⁷³ Ashcroft v. ACLU, 535 U.S. at 585-86.

⁷⁴ Ashcroft v. ACLU, 535 U.S. at 587 (O’Connor, J., concurring).

⁷⁵ Id. at 588.

⁷⁶ Miller, 413 U.S. at 31.

⁷⁷ Id. at 32.

discernable in 1973, why would similar generalizations not be possible for the nation as a whole, in an era of instantaneous, nationwide (and indeed worldwide) communication?⁷⁸

Although Justice O’Connor was the only Justice in that case to specifically call for adoption of national standards for Internet speech, five other Justices expressed varying degrees of concern about the application of local community standards to online media. For example, Justice Breyer observed:

To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.⁷⁹

Justice Breyer ultimately concluded that COPA intended to use the standards of the adult community as a whole, in the United States, as opposed to some specific geographic standard, and thereby avoided invalidating the law on those grounds.

Justice Kennedy, joined by Justices Souter and Ginsberg, expressed concern about subjecting Internet speakers to the standards of the most puritanical community in the United States, through application of local community standards.⁸⁰ That concern, alone, was not sufficient to invalidate the law under consideration, but the Justices did reaffirm the important requirement that each mode of expression has its own unique characteristics, and therefore must be accessed for First Amendment purposes by the standards best suited to it.⁸¹ Justice Stevens found significant distinction between online communications and those sent through the mail, as

⁷⁸ Ashcroft v. ACLU, 535 U.S. at 588-89.

⁷⁹ Ashcroft v. ACLU, 535 U.S. at 590 (Breyer, J., concurring).

⁸⁰ Ashcroft v. ACLU, 535 U.S. at 590-91 (Kennedy, J., concurring).

⁸¹ Id. (citing Southeast Promotions Ltd., v. Conrad, 420 U.S. 546, 557 (1975); Id. (“Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for ‘differences

in the characteristics of new media justify…differences in the First Amendment standards applied to them.’” (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969))). [WE’RE NOT SURE IF WE CAN USE TWO IDS]

in Hamling, or over the telephone lines, as in Sable, because the sender could avoid destinations with the most restrictive senders.⁸² In previous cases, he noted, local community standards were upheld based on the sender’s ability to tailor his messages to the communities it chose to serve, thus creating a permissible burden on the speaker to comply.⁸³ However, the sender of Internet transmissions must necessarily display his message to all of the millions of Americans who have access to the Internet if he chooses to display that message to one; accordingly this “fundamental difference in technologies,” requires a difference in the rules applicable to that particular medium.⁸⁴ Even after a second visit to the United States Supreme Court, the case involving application of community standards to the Internet has not yet been resolved, and the High Court has once again remanded the matter for additional fact-finding in light of advances in filtering technology since the original rulings.⁸⁵

3. Problems with Defining “the Community” in Obscenity Cases

1. Standardization of Geographic Boundaries

Despite substantial litigation regarding the proper community standard to be applied in resolving obscenity cases since the advent of the Internet, the issue remains an open question. While the question is certainly a difficult one, and subject to a variety of different analyses, the changes in technology, and society in general, militate for a reconsideration of the concept of community standards in obscenity cases. While the standards of a nation as a whole may have been inherently unknowable or indiscernible at the time Miller was decided in 1973, that is not necessarily the case thirty years later. For better or worse, our nation has adopted commonalities from coast to coast, and is much more homogenized than it once was in the pre-Miller culture.

⁸² Ashcroft v. ACLU, 535 U.S. at 602 (Stevens, J., dissenting).

⁸³ Id. at 605.

⁸⁴ Id. at 606.

⁸⁵ Ashcroft v. ACLU, 124 S.Ct. 2783 (2004).

Instead of fifty unique states with their own identifying characteristics and cultures, Americans now eat the same McDonalds^TM hamburgers, drink the same Starbucks^TM coffee, and wear the same GAP^TM clothes. While many mourn the loss of uniqueness and distinction that was once pervasive throughout our nation, the reality is inescapable. Whereas differences existed as a matter of course a few decades ago, cultures such as the Amish must now go to great lengths to sequester themselves from the mind-numbing sameness that has taken over the United States like a plague. No county is an island in this day of worldwide media and entertainment, where we have as much in common with acquaintances across the country as we do with our next door neighbor.

It is not only the Internet that requires reevaluation of the concept of local community standards; it is the progress of mankind itself. The standardization of information brought about by the Internet is merely a symptom of an ever-increasing wave of uniformity that tends to average out all people, of all nations and cultures. The absurdities resulting from attempts to judge online media by the standards of some local city, county, or state is merely one example of how technological progress and convergence of all media distribution mandates a reevaluation of the standards by which we judge protected speech from illegal obscenity.

2. Technological Advances Allow Greater Monitoring of Standards

Interestingly, whatever standards that might exist in this country are becoming easier to quantify and determine, from a technological standpoint. In prior cases, evidence of community standards often came from introduction of “comparables,” i.e., other similar erotic materials that are accepted or tolerated within the ideal community. Often, this evidence took the form of retail sales information generated from nearby adult media outlets that were willing to cooperate and provide such information.

As one can imagine, such proprietary revenue information was often difficult to extract from competitors, or those local businesses that simply chose not to get involved in a criminal prosecution. With the advent of Internet traffic monitoring technology, detailed statistics can be generated, identifying the level of consumption (and therefore acceptance) of various types of adult material in the United States. Current traffic monitoring programs allow for the detailed analysis of consumption of a particular adult website, or even specific pages within an adult website, by number of hits, page views, bandwidth and various other categories. Web traffic from the United States can be readily excised from foreign traffic, to provide immediate, real time, accurate information as to the desirability or acceptance of a particular website in the United States. Never before has such accurate information been available in regards to comparable material, or even the allegedly obscene material itself. For better or worse, the standards that do exist are becoming easier to prove, and more capable of dissection and analysis on various relevant levels, given advances in technology.

3. Reduced Presence of Adult Materials in the Community

While the concept of community standards is undergoing a radical shift, it is also becoming less relevant as the presence of the materials in the community is becoming more and more intangible. The existence of modern adult media is barely felt by the community as compared to when Miller was decided. For example, Internet images do not have any real presence in the potentially offended community, since they only exist on the server from which they are requested by the user, and on the computer on which they are received. With filters, children or particularly sensitive adults will not accidentally pass by or encounter materials that violate a particularly conservative community’s standards as they might have in the ‘70’s or ‘80’s when the vast majority of adult materials were obtained from retail outlets or theaters.

Unlike the physical presence of an X-rated movie in a rundown cinema with a suggestive marquis bearing the title for all passersby to see, online materials only exist for a brief nanosecond on the community’s telephone lines, coaxial cable or satellite waves that bring them into the requester’s personal computer. Pay-per-view satellite and cable television have little, if any, physical presence in a given community, and should likewise be amenable to a national

standards analysis. Given the right to possess even obscene materials in the privacy of one’s home,⁸⁶ and the developing right to personal sexual autonomy,⁸⁷ the community can hardly object to this manner of “presence” within the geographic community. Most modern media share these transmission characteristics, and thus should not implicate the same concerns that

were addressed in Miller and its progeny, relating to each community’s right to regulate the type of erotic material whose presence is tolerated within the confines of the local community.

4. Development of Cultural Communities

While the community standards of the nation as a whole have tended to ‘average out’ and eliminate the differences in communities based on geography, other distinguishing factors have created unique ‘communities’ defined by non-geographical factors. Perhaps the beginning of this analysis must be from a sociological perspective, rather than a legal one. In 1973 Chief Justice Burger proclaimed, “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of

conduct found tolerable in Las Vegas, or New York City.”⁸⁸ The fundamental principle

overlooked by that statement that is truer now than it was then is that a good many New Yorkers moved there from Mississippi and vice versa. And, realistically, the notion of “community” has evolved, as well. For a dramatic example, given the proliferation of national, Spanish-language

⁸⁶ Stanley v. Georgia, 394 U.S. 557 (1969).

⁸⁷ Lawrence v. Texas, 539 U.S. 558 (2003).

⁸⁸ Miller, 413 U.S. at 32.

television networks, the values of an American who is Spanish-speaking is more likely to be influenced by the national viewing audience of those networks than the average resident of his county, judicial district or state. The same is true of members of the National Rifle Association, Republicans, Democrats, gays, African-Americans, sports fans, and so on.

In 1973, people watched ABC, CBS, NBC, PBS and a smattering of local independents in larger markets; they read their local newspapers and Newsweek. Now, they are more likely to read magazines focusing on their particular area of interest or the particular group into which they fall, watch cable or satellite television with the hundreds of available specialty channels, and “bookmark” Web pages that they check regularly for their particular interests – whether it be Notre Dame football or growing roses. And they go to the local Notre Dame Football organization or attend the Rose Convention. Indeed, with the shrunken world, “communities” are defined not by neighborhoods, but rather by station in life and interests. A Baby Boomer is profoundly more likely to share the view of the average Baby Boomer across the country than of the average Generation X’r in his or her own county or state.

A particular problem with the concept of community standards in states like Texas, California and Illinois arises from the fact that people are more likely to agree with those in the same station in life than those in the same state; people from Chicago are more likely to have values consistent with people from Los Angeles than with people from Downstate Illinois; and those people are more likely to have values consistent with people from the agricultural central valleys of California than Chicago.

Turning to the Internet, current notions of “community standards,” as noted, reduce speech to the lowest common denominator. Arguably, reducing Internet speech to that acceptable in the most conservative community is not unlike “reducing adult population to

reading only what is fit for children” – “to burn the house to roast the pig.”⁸⁹ It is time for the courts to recognize that those offended by materials that are not offensive to a substantial group of others will have to pay a price for living in a free society – switch to another channel, rent a different DVD or install Net Nanny on their computers.

Conclusions

If the obscenity test is to continue to embrace the concept of “community standards,” recognition must be given the modern definition of “community.” Where the test is applied to Internet transmissions accessible throughout the entire world, the courts must change the contours of the “community standards” test to recognize a mode of communication that nobody dreamed of when that concept was developed by the courts.

Ultimately, lawmakers and the courts will need to move to some form of regulation of the time, place, and manner of distribution of hard core erotic speech, as opposed to outright criminalization using obscenity laws based on the increasingly irrelevant concept of community standards. Restrictions that minimize the physical impact on the community, and the viewer’s ability to shield himself or herself from accidental exposure to erotic speech, will take precedence over the limited modern utility of obscenity laws. Tomorrow’s erotic content regulations will likely involve concepts such as labeling, filtering, warnings, and the like, instead of outright bans as have been used in the past. To the extent that state and federal governments have a legitimate interest in regulating the distribution of erotic materials in a given community, such regulation will only be successful in the Digital Age if it takes the form of valid time, place, and manner restrictions, as opposed to full content bans.

⁸⁹ Butler v. State of Mich., 352 U.S. 380, 383 (1957) (striking down a statute prohibiting speech “tending to the corruption of the morals of youth”).

(Lawrence Walters and Clyde DeWitt are partners in the Orlando and Los Angeles offices, respectively, of Weston, Garrou, DeWitt & Walters, www.FirstAmendment.com. Both, along with the other members of the firm, have extensively litigated, lectured and written on issues arising from governmental attempts to regulate erotic speech over the Internet, as well as more traditional media such as motion pictures, print media and live performances.)