nowthatsfuckedup.com claims FL obscenity law unconstitutional
 

http://www.avn.com/index.php?Primary...tent_ID=247531

BARTOW, Fla. - In a move to have an obscenity case against a client dismissed, First Amendment attorney Lawrence G. Walters has filed with a Polk County circuit court a series of motions that claim Florida’s obscenity statute is unconstitutional.


Walters represents Christopher Wilson, 27, a Lakeland, Fla., man who was arrested in October and charged with 301 obscenity violations based on videos and still photographs displayed on his website, NowThatsFuckedUp.com. The member-participation adult entertainment site became infamous after it was reported that Wilson granted U.S. GIs free access to its for-pay members area in exchange for photos from Iraq and Afghanistan. Wilson, a former Eagle Lake, Fla., police officer, said American soldiers serving overseas could not access online porn because credit-card companies would not authorize charges originating from that region.

The prosecution is problematic on a number of levels, says Walters. First and foremost, Florida’s law is vague because it fails to define “community,” a key aspect of obscenity law. Walters has given the court several options for the definition, including the confines of Polk County (the most restrictive), the state of Florida, the U.S. as a whole, and the “cyber-community” encompassed by the Internet (the most lenient).

“We don’t believe Polk County community standards should be allowed to determine what materials are available on the Internet,” Walters says, echoing a theme becoming more common in cases involving adult content in the Internet age.

In addition, Walters says, the word “prurient” contained in Florida’s statute is no longer relevant in today’s society. “That word is no longer in general use today, and juries don’t know what it means,” he says. “We believe the law should be struck down on that alone.” He cites a similar Florida case from several years ago in which the prosecution of a “house of ill fame” was thrown out based on antiquated terminology.

If the terminology arguments don’t sway the court, Walters hopes a “federal pre-emption” one will. “In certain situations, only the feds can regulate activities without violating the Commerce Clause of the Constitution,” Walters says. “In previous cases in seven other states, ‘harmful to minors’ cases were struck down on Commerce Clause grounds.”

According to §230 of the Communications Decency Act, the embattled law that continues to govern obscenity prosecutions at the federal level, all state obscenity laws that are inconsistent with federal law automatically are pre-empted.

“Between those two arguments, which are in many ways related, we hope to convince the court that only the federal government can regulate obscenity, as opposed to the states,” Walters avers.