Defense Files New Petition in Ray Guhn Case

TALLAHASSEE, Fla. — Attorneys for Clinton McCowen, aka Ray Guhn, have filed a petition for a writ of prohibition at the 1st U.S. District Court of Appeals in Tallahassee, asking the appeals court to direct the trial court to cease exercising jurisdiction over the obscenity offenses alleged in the case pending against McCowen.

As stated in the petition, the question the defense asked the appeals court to resolve is “do the state’s various obscenity statutes apply to allegedly obscene materials disseminated solely via the Internet, and, if so, do such statutes violate what has come to be known as the dormant Commerce Clause of … the [U.S.] Constitution?”

McCowen’s attorney, Lawrence Walters, argued in the petition that the court should grant the writ of prohibition because his client “lacks a plain, speedy and adequate remedy at law.” Walters asserted that if the defense’s arguments are correct, then without the grant of the writ, his client would be deprived of his “constitutional right to avoid prosecution under an unconstitutional or inapplicable statute.”

“[S]uffering a three-week jury trial on these charges followed by an appeal would be an inadequate method for securing his constitutional right to be free from an unconstitutional prosecution,” Walters said in the petition.

Walters told XBIZ that the upshot of his argument is that “either which way [the state of Florida] turns, there is a jurisdictional problem with their case.”

“If the appeals court rules that the statute does not apply to Internet-based obscenity, then the trial court lacks jurisdiction to handle the case,” Walters said. “If they rule that the statute does apply to Internet-based materials, then the statute violates the dormant Commerce Clause.”

In the petition, Walters noted that the state itself does not dispute that the materials at issue in the case are entirely Internet-based.

The state’s probable cause affidavit “expressly stated that this case is based on the alleged distribution of allegedly obscene materials over the Internet, and neither that affidavit, nor any other discovery materials suggest that any other type of distribution of allegedly obscene materials is at issue in this case,” the defense stated in its petition.

The defense petition also stated that while the Florida state legislature has amended its child pornography statutes and laws prohibiting the sending of harmful matter to minors such that those laws clearly cover use of the Internet to transmit child porn and harmful matter, the legislature has not amended the state obscenity statute to do the same.

“In short, both as to ‘material harmful to minors’ and ‘child pornography’ the state legislature was extremely clear in indicating that its criminal statutes are intended to apply to some types of Internet transmissions,” Walters said in the petition. “In marked contrast, no such language appears in this very same chapter in the section establishing the prohibition on ‘obscene’ materials.”

The defense petition also noted that other states have tried to extend their obscenity laws to cover Internet-based materials, only to see their amended laws struck down by the courts as violating the dormant Commerce Clause.

“Similar statutes providing sexual content restrictions which expressly apply to materials on Internet websites have been repeatedly and consistently found in violation of the dormant Commerce Clause,” Walters wrote. “All seven of the previously cited cases involving state restrictions of sexual content on Internet websites included, entirely independent of any 1st Amendment discussion, a judicial determination that the challenged statute violated the dormant Commerce Clause.”

If the appeals court finds merit in the defense’s petition, Walters said the court could issue an “order to show cause” that would “bring the trial court’s activity to a screeching halt.” If the court rejects the defense petition, on the other hand, then the trial court will move ahead with the case.

Asked how long it might take to play out in court, Walters said that if the appeals court issued an order to show cause, it wouldn’t much matter to the defense how long it took, since that order would halt the progress of the trial court.

“They are supposed to treat requests for extraordinary relief as a priority,” Walters said. “So we expect it would be a matter of months and not years” for the appeals court to handle the issue, should it grant the defense’s petition.

Related:  

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

2024 Pornhub Awards Winners Announced

Winners of the 2024 Pornhub Awards were announced this morning.

Justices Alito, Thomas Invoke Victorian-Era Morality Law, Raising Censorship Concerns

Several national publications reported this week on widespread concern among Free Speech advocates after U.S. Supreme Court Justices Samuel Alito and Clarence Thomas repeatedly invoked during a hearing the infamous segregation-era law the Comstock Act, which was the cornerstone of U.S. censorship of sexual material from the 1870s until the 1970s.

Skinfluential Management's FansFuel Acquires Fanwire

Creator stats and affiliate marketing platform FansFuel has acquired creator account management tool Fanwire.

Nebraska AV Bill Moves Forward Despite Privacy, Free Speech Concerns

Nebraska’s unicameral Legislature has given first-round approval to LB 1092, the state’s version of the age verification bills being sponsored around the country by anti-porn religious conservative activists.

AEBN Celebrates 25th Anniversary

The Adult Entertainment Broadcast Network (AEBN) is celebrating its 25th year in business this week.

Performers in Meta Blacklisting Lawsuit Seek to Preserve Antitrust Claims

Adult Performance Artists Guild board officers Alana Evans, Kelly Pierce and Ruby have informed a California court that, although they want to drop their lawsuit claiming that Meta conspired with OnlyFans to blacklist rival premium fan platforms’ talent, they may still pursue antitrust claims in the future.

FSC, Co-Plaintiffs to Ask US Supreme Court to Review Constitutionality of Texas Age Verification Law

Free Speech Coalition (FSC) and its co-plaintiffs in the challenge to Texas’ controversial age verification law have petitioned the United States Court of Appeals for the 5th Circuit to stay its recent decision upholding the law, because they intend to appeal to the U.S. Supreme Court to review the law’s constitutionality.

FSC Vows to Fight Florida Age Verification Law

Free Speech Coalition (FSC) has issued a statement vowing to continue fighting Florida’s new age verification law, which was signed by Gov. Ron DeSantis on Monday as part of a comprehensive bill targeting minors’ use of social media.

Kansas Republican Aims to Create New Bureaucracy to 'Investigate' Porn Websites

Republican state legislators succeeded Monday in moving forward Kansas’ version of the age verification bills being sponsored around the country by anti-porn religious conservative activists, despite serious concerns raised by House Democrats about the cost of establishing a new bureaucracy tasked with investigating websites for pornographic content.

SK Intertainment Launches 'Skinfluential Management' Agency, FansFuel Joint Venture

Mr. Skin/Mr. Man parent company SK Intertainment has launched new creator agency Skinfluential Management, as well as a new joint venture with Showbizz Media's creator stats and affiliate marketing platform, FansFuel.

Show More