Defense Files Petition in Ray Guhn Case
Attorney: Writ would strike obscenity offenses from indictment.
Posted: 11/26/2007
TALLAHASSEE, Fla.
- Defense attorneys in the
obscenity case of Clinton McCowen, aka Ray Guhn, have filed
a petition for a writ of prohibition, seeking to halt exercising jurisdiction
over the alleged offenses.
"By allowing the obscenity case to proceed, the trial court
is acting beyond the court's jurisdiction, and that should be stopped,"
McCowen's attorney Lawrence Walters told AVN Online. "Florida's obscenity
statute was not amended to cover Internet activities, and its current language
does not apply to online distribution of obscenity."
The petition, filed at the 1st U.S. District Court of
Appeals in Tallahassee, asks the court, "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?"
Walters said the Florida
Legislature did not make the statute applicable to Internet obscenity "because
doing so would violate the Commerce Clause."
"At least six courts have found that states cannot regulate
the content of erotic websites," he said. "That is the province of the federal
government only. Therefore, the state is in a box: Either the statute does
not apply or, if it does, the law is unconstitutional in violation of the
Commerce Clause."
In the petition, Walters noted that the state does not dispute that the
materials at issue in the case are entirely Internet-based.
Additionally, the petition states that while the Florida Legislature has
amended its child-pornography statutes and laws to include the Internet as a
medium for illegally transmitting harmful material to minors, the Legislature
has not amended the state obscenity statute to do the same.
In the petition, Walters also argues that the court should grant the writ of
prohibition due to the lack of a plain, speedy and adequate legal remedy for
his client. If the writ isn't granted, he said, McCowen would be denied his
"constitutional right to avoid prosecution under an unconstitutional or
inapplicable statute."
"Enduring a three-week jury trial surrounding these charges followed by an
appeal would be an inadequate method for securing his constitutional right to
be free from an unconstitutional prosecution," Walters stated in the petition.
Walters said the writ would remove the obscenity offenses
from McCowen's indictment.
"That means the money-laundering case goes away completely,
and the racketeering case is significantly weakened," he said. "The state
could continue to pursue the case under the other theories, including
prostitution, but we feel we have viable defenses to those claims, as
well."
The appeals court also could issue an "order to show cause"
if it finds merit in the defense's petition, Walters said, explaining that this
would "put a complete stop to the prosecution until the appellate case is
resolved."
If the court rejects the petition, Walters said, the trial court will move forward
with the case with a trial within four to six months.
