McCowen’s lawyer, Lawrence G. Walters, is challenging the application of local community standards to the Internet, on constitutional grounds. Walters argues that the relevant community must be the national community, rather than any state or local community.
The defense’s lengthy motion claims that the Internet can only be evaluated by national standards, given its global scope and inability to discriminate what locations can access adult content.
McCowen’s June 23 arrest on charges of racketeering, engaging in prostitution, and the manufacture and sale of obscene material culminated a months-long investigation into the operations of McCowen’s company, Global Technologies Inc., doing business as Ray Guhn Productions. McCowen’s website that he shot content for, CumOnHerFace.com, is part of the Cash Titans affiliate program, which he owned.
“Applying conservative community standards to adult content that is available globally via the Internet creates an unworkable burden on Internet operators,” Walters told XBIZ. “Essentially, if you use a small community’s standards and apply them to the Internet, it would effectively allow a small segment of the country to decide for all citizens what material is OK. To mount a defense, we need to know what standards are being applied in this case.”
According to Walters, the U.S. Supreme Court has struggled with the concept of using community standards on the Internet and has still not issued a definitive ruling on the subject. Additionally, a majority of the sitting Supreme Court Justices has expressed concerns about the application of local community standards to online materials.
Only a small handful of state-level obscenity cases are being prosecuted across the nation in relation to websites, Walters said, which is why he believes the McCowen case is critical and has the potential to set new precedence.
In the famous Miller vs. California case, the court ruled that the most sensitive jurisdictions should not be allowed to suppress the nature of materials available in communities where they are accepted or tolerated.
“We strongly believe that there is no longer a small independent community standard; we all share common experiences as a nation,” Walters said. “That wasn’t true 30 years ago, but with cellphones, instant messaging, email, etcetera, the vast majority of America experiences the same things and has become homogenized, in effect.”
The next step in McCowen’s case is for the judge to hold a hearing on the motion, which Walters expects to happen before the end of the month.
The case is Florida vs. Clinton R. McCowen No. 2006-CF-003151-C.