educational

An Obscenity Prosecution: Part 1

Lawrence G. Walters, Esq.

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, a/k/a "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, Florida; 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. Detective 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.

Detective Gates responded to the Robinson home to begin investigating the death threat in February 1999. During the process of interviewing Tammy, Detective Gates noticed a web page displayed on her personal computer that contained her picture. Detective 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 Detective 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 Detective 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 Detective 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.

Detective 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, based on the following set of images: http://www.AdultIndustryUpdate.com/Robinson.

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 non-sexually 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.

Stay Tuned for Part 2!

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 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.”

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