educational

State-Level Prosecutions

Alex Henderson
During the George W. Bush era, federal obscenity prosecutions have been a major concern for the adult entertainment industry in the U.S. But federal prosecutors are not the only prosecutors who can charge adult entrepreneurs with obscenity; adult companies also need to be concerned about the possibility of obscenity prosecutions at the state level. State obscenity prosecutions have been a fact of life for American adult businesses during the industry’s best times and worst times.

From a federal standpoint, the Bill Clinton years were generally good times for the adult industry. Janet Reno, Clinton’s attorney general for eight years, had no interest in prosecuting adult entertainment at the federal level; Reno felt that aggressively prosecuting child pornography and other serious felonies was a much better use of federal tax dollars. The rise of the adult Internet in the 1990s coincided with Clinton’s two terms as president, and the absence of federal obscenity prosecutions during the Clinton years helped a long list of adult webmasters to grow and prosper. Reno’s lack of interest in federal obscenity prosecutions was a major departure from the Ronald Reagan/George Bush, Sr., era, when federal prosecutors went after the adult industry with a vengeance. But Florida-based First Amendment attorney Lawrence G. Walters of the firm Weston, Garrou, Walters & Mooney pointed out that the lack of federal obscenity prosecutions under Clinton didn’t mean that obscenity prosecutions at the state level went away in the 1990s; state-level obscenity prosecutions, Walters said, were alive and well during the Clinton years, and have continued to be problematic during George W. Bush’s two terms as president.

One of the most troubling state obscenity cases of the George W. Bush era, Walters said, was the State of Florida vs. Christopher Wilson. In Polk County, Florida, Wilson published NowThatsFucked Up.com, an adult website that contained some graphic photos of casualties from the war in Iraq (which Wilson opposed). Wilson was hit with multiple felony charges, and civil libertarians argued that Wilson’s prosecution wasn’t really about erotic photos, but rather was motivated by a desire to suppress political speech that was unfavorable to the policies of the Bush Administration. Represented by Walters, Wilson avoided prison in 2006 by pleading no contest to some misdemeanor charges and agreeing to a $500 fine and five years probation.

“Chris Wilson was facing over 100 years in prison, because they charged him with 300 separate offenses,” Walters explained. “Mr. Wilson could have spent the rest of his life in prison. I think that the Chris Wilson case was tremendously important, because it showed how state obscenity laws can be abused for political purposes.”

Another major obscenity-related state case in Florida has involved adult webmaster Clinton McCowan, aka Ray Guhn, who is facing a combination of obscenity, money laundering, prostitution and racketeering charges. Walters, who represents Guhn, noted that under Florida law, prosecutors can claim that money laundering is occurring if someone profits from the commission of a felony — and that includes obscenity.

“The McCowan case shows that a state-level prosecution can be as serious, if not more serious, than a prosecution at the federal level,” Walters asserted. “Under the federal obscenity statute, you face up to five years in prison for an obscenity offense; in Florida, under the racketeering law that is based on obscenity, you can spend up to 30 years in prison, have all of your assets forfeited and be fined up to $100,000. So when people say that federal obscenity prosecution is more serious than state obscenity prosecution, that isn’t always true — as we see with the McCowan case.”

The Wilson and McCowan cases were hardly Walters’ first obscenity battles in Florida’s state courts. In fact, Walters had plenty to keep him busy at the state level when Clinton was president. “We defended a number of obscenity cases in Polk County, Fla., during the Bill Clinton years,” Walters recalled. “Anyone who set up an adult business in Polk County was immediately referred to the sheriff’s office for an obscenity investigation, and if the business itself wouldn’t back down, they would go to the landlord and say, ‘We’re going to prosecute you next if you don’t evict these people.’ So the landlords would say, ‘Screw this. We’d rather evict them and find a new tenant than get brought down on racketeering charges.’”

A groundbreaking state obscenity case that came about in Polk County during the Clinton years was the State of Florida vs. Tammy Robinson. In 1999, Robinson, aka Becka Lynn, was charged with obscenity for publishing erotic photos of herself online; Walters’ firm fought hard on Robinson’s behalf, and the charges were eventually dropped. Like the Graham Waddon case in the U.K. — which also came about in 1999 — the Robinson case was historic, because it demonstrated that online erotica could, in fact, result in obscenity charges (Waddon, a London-based adult webmaster, was sentenced to 18 months in prison in 1999 under Britain’s Obscene Publications Act of 1959 for publishing obscene material on the Internet).

The Atlanta-based First Amendment attorney Alan I. Begner of the firm Begner & Begner has been representing adult businesses since the early 1980s, and said a positive development is that obscenity has become increasingly difficult to prove in state courts. But he noted that if state and local governments can’t use the Miller test to get an obscenity conviction, they can still find other ways to harm a local adult business.

“Ever since Bill Clinton and Monica Lewinsky were having fun, hardly anything that is sexually explicit is beyond the community standards of America,” Begner asserted. “Adult material is everywhere, and even if you go into a grocery store and buy a mainstream nonadult magazine like Cosmopolitan or Redbook, you will find headlines that scream out things like, ‘10 Sex Secrets That Will Make Him Happy.’ In order to prove obscenity under Miller, the government has to prove that the adult material is beyond community standards — and in this day and time, almost all XXX material is within community standards of acceptance under the Miller test. So it’s easier to put a local adult video store out of business if you cause pain in other ways — for example, with licensing restrictions or with rules that are impossible to meet, like having to have 100 armed guards for each customer or something ridiculous like that.”

Begner has also found that in areas plagued by high rates of violent crime, many prospective jurors would much rather see state prosecutors going after rapists, armed robbers and muggers than a local adult business. “I’ve argued to juries that it’s ridiculous to have police officers going after local adult video stores when real crime is eating up the community,” Begner said, “and that argument resonates with jurors like crazy, no matter if they are conservatives or liberals.”

Walters said that one of the reasons why adult entrepreneurs need to be mindful of state obscenity prosecutions is the fact that the Internet has had a decentralizing effect on the industry. Although Los Angeles remains the adult entertainment capital of the world, the adult Internet explosion of the 1990s and 2000s has created a long list of prosperous adult entrepreneurs who don’t live anywhere near the San Fernando Valley. Indeed, successful adult Internet companies can be found in cities ranging from Philadelphia (home of HotMovies.com, the largest digital adult video-on-demand provider in the U.S.) to Phoenix to Seattle — and one of the most rapidly growing areas for adult webmasters, Walters said, has been southern Florida.

Asked what regions of the U.S. are the worst for state obscenity prosecutions, Walters replied: “Obscenity prosecution at the state level is so random, so spread out and so unpredictable that I would hate to go on record as saying that one particular part of the country is more problematic than another. We have seen obscenity prosecutions at the state level in all kinds of major metropolises, and we have seen them in the boonies. A lot of it has to do with which sheriff wants the headlines on a particular day or which state attorney is going to try to get elected. Obscenity prosecution at the state level is totally unpredictable.”

Between federal and state cases, Walters and other First Amendment lawyers have had their hands full in the George W. Bush era. Adult entrepreneurs are hoping that after Bush leaves office in January 2009, federal obscenity prosecutions will come to an end. But it remains to be seen whether the next president — be it John McCain, Hillary Rodham Clinton or Barack Obama — will appoint an attorney general who favors federal obscenity prosecutions or one who, like Reno, is not interested in them. And Walters predicted that even if federal obscenity prosecutions come to a halt in 2009, First Amendment lawyers will still be busy defending adult businesses at the state level.

‘If the attorney general under the next president doesn’t want to prosecute obscenity at the federal level, the family-values groups — Morality in Media, Focus on the Family, the American Family Association — will all turn to the state attorneys and the sheriffs to try to put a hurt on the adult entertainment industry,” Walters asserted. “That happened during the 1990s when Bill Clinton was president: There was an uptick in state obscenity prosecutions when the family-values groups realized that they weren’t getting anywhere trying to convince Bill Clinton or Janet Reno that adult entertainment should be a priority. And we can expect to see the same kind of thing if we have a new attorney general who refuses to waste taxpayer dollars on consenting adult material. We’ll see the family-values groups turning to the state prosecutors and the local sheriffs — sometimes successfully, sometimes unsuccessfully.”

Walters continued: “It never slows down for First Amendment lawyers, because the opposition is never quiet. The family-values groups will turn to whoever will listen in order to get their agenda forced down other people’s throats — and that includes prosecutors at the state level.

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