opinion

Trouble in Polk County

Lawrence G. Walters

Last month, days after Kimberly Kupps was arrested on 13 obscenity counts for content distributed over the Internet, Polk County Sheriff Grady Judd declared war on the manufacturing and distribution of porn in his county.

“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.

The state Attorney’s Office, in conjunction with the Polk County Sheriff’s Office, therefore decided it was time to clean up the Internet, at least that part of the Internet that invades Polk County. This time, however, the county bit off more than it could chew.

“[Pornographers] should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.

The 5’ 10” 55-year-old big-boobs-niche performer had been on the radar of the Polk County Sheriffs Department for three months.

Kupps has tapped adult industry attorney Lawrence G. Walters to represent her.

Sometimes, in order to see where you are going, you have to look at where you have been.

History can often be the best predictor of the future, particularly in law enforcement matters. Given the promised wave of obscenity prosecutions to be brought by the Justice Department against adult webmasters, and others involved in the industry, the time is right to take a look back at the very first obscenity prosecution against an adult website —the case of Tammy and Herbert Robinson.

Those of us who were involved in the adult Internet industry in 1999 could not avoid the widespread media exposure relating to the Robinson case. For those readers who got involved after the case was resolved, and for those who do not remember, a brief review of the facts of that landmark case is in order.

In early 1999, Tammy Robinson, aka “BeckaLynn” (www.BeckaLynn.com), received a death threat via email from some crazed individual. She took this threat quite seriously since certain information contained in the email indicated that this person knew where she lived, and it made specific reference to doing harm to her children. Without delving into the details of this threat suffice it to say that the actions described would turn any reader’s stomach. Tammy immediately called the FBI, who would not be bothered with the incident, but who referred her to the Polk County Sheriff’s Office, Computer Crimes Unit.

For anyone who is not familiar with Polk County, Fla., it is a largely rural, conservative, and religious county situated directly between Tampa and Orlando, both thriving cosmopolitan cities. Polk County is a bit of an oddity in this state. The old joke around here is: “If you enter Polk County, set your watch back 50 years.” Although one relatively large municipality exists in Polk County, the City of Lakeland, it is largely made up of orange groves, farm houses and churches. For 20 years, the sheriff and the state Attorney’s Office have been battling to completely rid the county of all forms of adult entertainment. This well-publicized yet successful battle involved questionable intimidation tactics, including threats to the landowners of any adult entertainment businesses, who were charged or threatened with racketeering offenses if they failed to evict their adult entertainment tenants and consent to a deed restriction prohibiting the property from ever being used for adult entertainment in the future. It is against this backdrop that Ms. Robinson’s request for law enforcement assistance must be evaluated.

The Computer Crimes Unit in Polk County consisted of one sheriff’s detective: Charlie Gates. Det. Gates had been moved around from department to department, and he had a somewhat checkered past with the Sheriff’s Office. His superiors ultimately stuck him behind a computer to look for child pornography and obscenity violations.

Gates responded to the Robinson home to begin investigating the death threat in February 1999. During the process of interviewing Tammy, Gates noticed a web page displayed on her personal computer that contained her picture. Gates inquired as to the nature of the website, and Tammy openly described her involvement with an amateur Website called Cyber Dream Makers, found at: www.DreamNet.com. Tammy inquired as to whether there was anything illegal about participating in such a website and sending her images to the business, which was based in Arizona. However Gates assured her that there was no legal problem with the site. Ms. Robinson also offered to take the site down if there was any potential concern, but Gates insisted that she leave it up, and that she not be worried.

Predictably, law enforcement was not being particularly forthright in this instance, and Gates quickly abandoned the death threat investigation, and turned to investigating the Robinsons for obscenity violations under Florida law. As alluded to earlier, Polk County seeks to set itself apart and establish its own community values that are often at odds with the surrounding areas, and the country at large. Although it is unclear whether the government-mandated virtue is supported by the citizenry of Polk County, the law enforcement community vigorously seeks to do “the Lord’s work” by acting as the morality police and eliminating what it sees to be unhealthy entertainment in the form of topless bars, adult video stores and, in this case, adult websites. The Sheriff’s Office had succeeded in ridding the county of virtually every other form of adult entertainment prior to this time, however adult imagery was now coming into the hallowed halls of Polk County in droves, via the Internet. The state Attorney’s Office, in conjunction with the Polk County Sheriff’s Office, therefore decided it was time to clean up the Internet, at least that part of the Internet that invades Polk County. This time, however, the county bit off more than it could chew.

Gates initiated his investigation by posing as a customer of Tammy’s website, and downloading a number of images to a floppy disk, (without the permission of the copyright holder). The sheriff then took the images to the local judge who, significantly, issued a multiple “probable cause determinations” finding each individual image obscene. Investigators used those probable cause determinations to secure a tremendously overbroad search warrant that authorized the seizure of all “pornography” or any “means used to create pornography.” The warrant also authorized investigators to seize Ms. Robinson’s clothing, sex toys and bank account records.

Early one morning in March, 1999, a SWAT team of over 20 police officers showed up at the Robinson residence while she was taking a shower. They pounded on the door and demanded to be let in. When Tammy asked for a moment to be able to put on some clothes (since she had just gotten out of the shower), they kicked in the door and paraded her around naked in front of multiple male officers before being allowed to clothe herself.

She and her husband were taken into separate rooms and interrogated about their involvement in the DreamNet.com website.

The investigators tried to make the case that the couple’s children were being exposed to this adult business, and should therefore be removed from the home based on some trumped-up charge of child abuse or neglect. Parenthetically, the Florida Department of Children and Family Services quickly dismissed such allegations as absurd. During the search, the house was ransacked, and many videos were seized including the videotape of Tammy giving birth to her child.

Interestingly, some girly magazines were seized, while others were left at the residence. Officers simply decided to pick and choose what constituted “pornography” and what was not. Ultimately, the couple was charged with wholesale promotion of obscenity, a felony in the state of Florida.

As is obvious to even the most casual observer, the images alleged to be obscene in this case are mild compared to standard online adult fare in modern times. This was even true to a certain extent in 1999, as none of the images even depicted actual penetration. Keep in mind, however, that the Miller test does contemplate that nonsexually explicit images can be obscene.

For example, the threshold test to determine whether the Miller test applies is whether the materials depict sexual activity or contain a lewd display of the genitals. The government can therefore charge, as obscene, Hustler-style nude images —requiring the defendant to defend based on the other elements of the Miller test, i.e., that the images are not patently offensive, do not appeal to the prurient interest (based on community standards) and contain serious artistic literary political or scientific value.

The arrest of Tammy and Herbert Robinson for this felony activity caused great disruption in their personal and business lives. Herbert Robinson lost his job at a large supermarket chain, based solely on the arrest allegations. As noted earlier, Tammy Robinson faced the loss of her children through a Family Services investigation.

They both had to scrape up money for a bail bondsman, just to be released pending their trial. Shortly after getting over the shock of the initial arrest, the Robinsons were hit with a forfeiture complaint, wherein the Sheriff’s Department sought a forfeiture of all of the Robinson’s personal property that was of any value, including computers, CD players, cameras, money and other electronics.

At this point, the Robinsons realized that they were in over their head, and needed an experienced 1st Amendment attorney to defend their interests. This author was proud to assist in representing Tammy and Herbert Robinson throughout all stages of this nightmare. Interestingly, another amateur adult Website couple was arrested in Polk County on the same day as the Robinsons. They were involved with the Website known as iFriends.com. Their attorney appeared on television the day after the arrest and observed that the local convenience stores carried adult videos that were more hard core than the materials alleged to be obscene in these cases. The very next day, the Sheriff’s Office raided all of the convenience stores, which quickly complied with the sheriff’s demands by taking all adult videos out of public circulation. So much for that argument!

It then became obvious that the state was out for blood, and wanted these individuals to do time. In other words, this case was serious. Sometimes, this author has learned over the years, the best defense is a good offense. Accordingly, the decision was made to turn the prosecutors into the defendants by filing not one, but two, federal lawsuits against both the Sheriff’s Office and the state Attorney’s Office, based on various civil rights violations, including a 1st Amendment prior restraint claim.

This case was much different than any other the Polk County Sheriff’s Office had ever litigated in the past. Initially, it had to do with computers and the Internet — an element that was not often involved in the typical criminal case in Polk County.

Moreover, this case differed from the typical obscenity case in many important respects: For example, the defense quickly filed a motion to determine the geographic scope of the community since it was unclear which community’s standards would apply in this case, and what kind of jury instruction would be given to the jury when it came time to evaluate the community standards issue. The defense also raised concerns with the way this obscenity case was being prosecuted, including the presentation of individual allegedly obscene images to the court, instead of evaluation of the entire website “as a whole” as required under the Miller test. The dreamnet.com site included many other models and hundreds of images that could be part of the whole website. It has still not been determined what the “whole work” is when it comes to online materials, which do not have a convenient beginning, middle or end. Many of these issues may not be sorted out for years to come, given their complexity and the potential for varying inconsistent determinations by the courts. However, another more traditional concern raised in the Robinson case was the legality of the search warrant used to ransack the residence.

As noted earlier, the search warrant authorized the seizure of all “pornography” and means used to create pornography. The case law relating to searches and seizures of materials 1st it has been well established that law enforcement officers cannot rifle through one’s personal belongings and decide for themselves what materials are obscene and what materials are legal. Only specifically identifiable titles may be seized, and then only after an adversary judicial determination of obscenity. Given the arbitrary decisions obviously made by the officers in taking some adult items, while leaving others, this warrant was patently defective and unquestionably overbroad.

As a result of the various lawsuits facing the prosecution, and the significant legal issues raised by the defense, the state Attorney’s Office began to wonder whether this case was all worth it, and became concerned that its prosecution was falling apart. Once the defense called in an expert witness from halfway across the country to testify as to the community standards issue, the prosecution knew the defense team was serious, and never let him take the stand by immediately proposing a means by which the case could be dismissed to the satisfaction of all parties involved.

The case was finally dismissed on Jan. 29, 2001. The dismissal of the case between Tammy and Herbert Robinson was one of the highlights of this author’s practice. However, that victory was not without its moments of despair and terror for the clients. Throughout the proceedings, the Robinsons understood that they could each go to prison for a period of up to five years, and lose contact with their children (and each other) during incarceration. Moreover, they could both be convicted felons for the rest of their lives.

The mainstream media took a great interest in this matter, and the case was highlighted on Fox Files, 48 Hours and the Oprah Winfrey Show. The media spotlight shone brightly on Polk County, Florida, which became increasingly embarrassed about its Puritanical morality being stuffed down everyone’s throats. Ultimately, that spotlight was too bright for the censors, and they backed down.

More on the Beckham case can be read at http://www.adultindustry update.com/archives/Anatomy%20of%20an.

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