In three separate motions, McCowen’s attorneys asked that the court render a ruling as to what the key phrase “as a whole” applies to within the context of the case; argued that the state’s obscenity law does not apply to online content; and asserted that the state’s obscenity law runs afoul of privacy guarantees under the state’s constitution as it applies to the Internet.
In its motion for a pre-trial determination of the meaning of “taken as a whole” in the context of Internet obscenity allegations, the defense asked the court to determine whether the entire website that must be taken as a whole, or if there is “some entirely different grouping of material” that this phrase will be applied to in order for the state to prove that McCowen violated the state’s obscenity statute.
The defense noted in its motion that the state has “informed [the] defendant that it intends to assert that there are 400 separate items on the subject website, and that each of them is legally obscene, and each could independently warrant a determination of an obscenity violation,” but that this same argument could not be applied with respect to allegedly obscene photographs in a magazine.
Despite the fact that it is “entirely possible, if not likely, that many users will never look at anything in the magazine other than the allegedly obscene photographs,” the juries in cases involving magazines were “required to consider the entirety of the magazine (regardless of whether the typical reader would do so).”
Should the court deny the request that McCowen’s entire website be considered the work “as a whole,” the defense argued that as an alternative, the court should at a minimum “take into account the totality of any images, text, video or other content that a website user must view when accessing the content alleged to be obscene by the state.”
Second, the defense entered a motion for the court to strike all allegations of obscenity from the indictment on the grounds that Florida’s obscenity laws do not apply to Internet-based materials. Further, the defense argued, if the court construes the state law in such a way that it does apply to Internet-based materials, the law violates the Dormant Commerce Clause of the U.S. Constitution.
Lawrence Walters, one of McCowen’s attorneys, told XBIZ that the Commerce Clause motion is “one of the strongest, if not the strongest argument” the defense has in the case.
“The statute plainly does not apply to Internet material,” Walters said of the state’s obscenity law. “There may be good reasons why the Florida legislature chose not to expand the statute in this way, given the Commerce Clause problems resulting from any such expansion. But as it reads today, we believe Florida is not empowered to prosecute obscenity on the Internet.”
Walters added that “even if the statute can be read either way, we automatically get the benefit of the more favorable interpretation under a legal principle called the ‘Rule of Lenity.’”
The defense’s more novel motion, according to Walters, is its claim that the state’s obscenity law violates privacy rights guaranteed under the Florida constitution if it is applied to online materials.
Citing another Florida case, State vs. Keaton, the defense noted in its motion that the Keaton court “rejected the contention that a state may regulate obscenity without regard to the context within which the issue arises,” and noted that in its complaint against McCowen, the state “has totally disregarded the context within which the allegations of obscenity arise.”
In essence, the defense’s privacy motion argues that since a website is not located in physical space, under the law users downloading from adult websites should be treated as participants in a sexually explicit phone call rather than customers entering a brick and mortar storefront. The Keaton court held that with respect to allegedly obscene contents of a phone call, the state has no authority to restrict the speaker's expression, because of the speaker's expectation of privacy.
Customers entering an adult store, on the other hand, are in the public space and therefore do not have an expectation of privacy, under the Keaton court’s reasoning.
Walters told XBIZ that the privacy motion “brings us into somewhat uncharted territory.”
“Given the developments in methods of communication, the courts will be forced to consider the privacy implications of governmental regulation of such communication,” Walters said. “We believe that the policy reasons supporting the non-interference approach to telephone communications are readily applicable to private consumption of adult websites on personal computers.”
"Website content does not impact the community in the same way as tangible product offered for sale in brick and mortar retail locations,” Walters added. The state interests are much different, and much less apparent, where website communications are involved. Given Florida’s strong right of privacy, we argue that the court should strike the obscenity allegations from the indictment.”
Walters emphasized that the three motions filed Monday “do not represent the sum total of our legal arguments.”
“We have a number of other legal challenges and issues to bring to the court at trial, through motions in limine, motions for judgment of acquittal and evidentiary objections,” Walters said. “We have decided to raise other issues using other procedural devices.”