Home > News > Defense Files New Petition in Ray Guhn Case • Bookmark   • Newsletters   • Register Search Options

NEWS STORY

Defense Files New Petition in Ray Guhn Case

Defense argued that the Florida obscenity law does not apply to websites and any such application of the law would violate the Commerce Clause of the U.S. Constitution.
Defense Files New Petition in Ray Guhn Case
Get XBIZ News
Nov 21, 2007 3:00 PM PST    Text size: 
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.

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !

EDUCATIONAL FEATURES

Cam Model Megan Kroft Dreams Big at Studio 20

Hey guys! Oh, I hate when I say that, all we cam girls say that, it’s beginning to sound so cliché. Hey! Hello! People from the industry, cam girls, cam boys, hello! I’m Megan Kroft.... More »

Rich Girls Offers Pro Cam Modeling Tips

The live camming industry offers endless opportunities to earn signficant sums of money and afford a luxurious lifestyle, but only with tireless efforts and non-stop perseverance. To be an elite cam model... More »

CBT Takes Testicular Play to the Next Level

CBT is an acronym often associated with cognitive behavioral therapy or computer-based training, but in the BDSM world CBT stands for none other than “cock and ball torture.” Those four little... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Subscribe to XBIZ World magazine, the industry's leading e-commerce trade publication, delivering in-depth coverage of the online, mobile and ancillary digital markets.

UPCOMING EVENTS

Latin America Adult Business Expo

Jul 10 - Jul 12
Cartagena, Colombia

ANME Founders Show

Jul 16 - Jul 18
Los Angeles Marriott Burbank Airport

QWEBEC Expo

Aug 03 - Aug 06
Montreal, Quebec

XBIZ Berlin 2017

Sep 11 - Sep 14
Berlin, Germany
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!