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

NEWS STORY

Defense Files New Motions in Ray Guhn Obscenity Case

Attorneys for McCowen said state lacks jurisdiction over websites and obscenity statute violates privacy rights granted by Fla. constitution.
Defense Files New Motions in Ray Guhn Obscenity Case
Get XBIZ News
XBIZ Research
Will 'free porn' forever garner the lion's share of consumer viewership?
Yes
  67.20%
No
  32.80%
Out of 125 votes. Results based on votes submitted by members of XBIZ.net social network.
Tuesday, Oct 2, 2007    Text size: 
MILTON, Fla. — Defense attorneys for Clinton McCowen, aka Ray Guhn, on Monday filed new motions challenging the state’s case against him on multiple grounds, including the assertion that the state’s obscenity law does not apply to material on the Internet.

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.”

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 !

LEGAL PERSPECTIVES

Lessons From History: How We Arrived at Where We Are

Attending one of the recent trade shows reminds anyone there of the broad diversity of the members of this industry. The attendees ranged from entrepreneurs barely old enough to gain entry to those whose... More »

Placing Regulations on Adult Sites

As stories of the government’s assault on the adult industry based on obscenity prosecutions and 2257 inspections fade into legend, a new legal boogieman may be waiting in the shadows. It is known... More »

Acquiring Online Businesses

2013 was a busy year in the online adult industry; especially in terms of business purchases, sales and mergers. Online businesses were purchased at record prices in 2013 and I expect that 2014 will continue... 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

Exxxotica Fort Lauderdale

May 02 - May 04
Fort Lauderdale, Florida

XBIZ Summit 2014

May 13 - May 16
Miami Beach, Florida

EROtrends

May 17 - May 18
Warsaw, Poland

Eurowebtainment

May 21 - May 24
Majorca,Spain
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!