Nov 21, 2007 3:00 PM PST    Text size: 

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.