Florida- Civil liberties groups last week asked a Fla. appeals court to free a webmaster jailed for allegedly posting obscene photographs on a website hosted in Europe. Gainesville lawyer Gary Edinger, who submitted the amicus brief on behalf of the ACLU, the Free Speech Coalition (FSC) and the First Amendment Lawyers Assn., said sexual expression in cyberspace enjoys constitutional protection. Edinger told the U.S. Appeals Court, Lakeland, it is "unprecedented" for the govt. to use imprisonment to prevent distribution of material online.
In a 19-page brief, the groups urged the court to reverse a lower judge's decision authorizing the Polk County Sheriff's Office to revoke Christopher Wilson's bail and put him back behind bars citing "probable cause" to believe images on his site are obscene. Wilson, 28, gained notoriety when military authorities learned U.S. personnel in Afghanistan and Iraq were sending him images of war in exchange for access to his site's amateur porn photos and videos, the groups said. Wilson runs the site -- nowthatsfuckedup.com -- from his Lakeland home. He posted the violent images to help spark political debate, the groups said.
Wilson was arrested in Oct., charged with obscenity for posting sex pictures submitted by users, not soldier- submitted war images. Released on $151,000 bond, Wilson, while awaiting trial, moved to Orange County, where he kept running the site, which is hosted in the Netherlands. Fla. Attorney Gen. Charlie Crist (R) filed a motion to put him back in jail for running the site outside Polk County -- a violation of the conditions of his release, law enforcement argued. The judge agreed Dec. 16 and put him in Polk County Jail where he remains, FSC said.
In the filing, the groups argued the crime of obscenity is unique in American jurisprudence and in no other case is a fully protected constitutional right subject to prosecution based on standards of decency that vary by community. They also said the situation could chill free speech. Given the Web's worldwide reach, "no webmaster in this country can be secure against prosecution and incarceration on a mere allegation of criminal speech." If the appeals court fails to act, the negative impact on speech will be "dramatic and universal," the groups said.
Due to inherent inconsistency and legal unpredictability, hundreds of thousands of U.S.-based English language sites containing sexually explicit imagery are subject to obscenity prosecution in numerous jurisdictions, the groups said. "No one can design a website immune from those extraordinary and unique risks of criminal prosecution, so long as there is at least one sexually explicit image," the filing said.
"This is a classic example of a censorship crusade by local government bureaucrats, who are relying on their own subjective definition of obscenity to arrest someone even before any court has found that this website is illegal," said Howard Simon, exec. dir. of the ACLU of Fla.: "What right do Polk County officials have to decide what people who live in Berlin and London and Hong Kong and New York access in the privacy of their own homes?" FSC Exec. Dir. Michelle Freridge called the case a glaring example of misusing obscenity law to censor unpopular speech.
The motive for the "exceptionally harsh charges" seems political, Edinger told us, citing the fact that Wilson "posted images of the Iraq War that the Administration found to be inconvenient, if not outright embarrassing." He said jailing a citizen for what remains presumptively protected speech is a prior restraint violating the First Amendment. While obscenity can be prosecuted, pornographic materials are fully protected "up to the very moment a jury finds them to be obscene." No jury has reached that decision in this instance, Edinger said. Crist's office is required to respond to the petition by noon today (Wed.), a court spokeswoman said.
Wilson's attorney, Larry Walters, said it's suspicious that his client, out of countless other webmasters who post sexual content online, was singled out and detained. The reason, he alleges, is because of the war photos. "You know that somebody made a call to somebody and he was arrested for obscenity," Wilson said: "This is a U.S. citizen being punished for distributing images of the war that somebody [in Washington] didn't like."
A Justice Dept. official said state attorneys general don't report to DoJ "in any way, shape or form." "We can't give them directives on what to prosecute or not prosecute," he said. He said he didn't know of any federal prosecution involving Wilson. A Crist spokesman refused to answer queries about the case, saying the office hadn't drafted its response to the court.
Walters called the holiday weekend a "rollercoaster" as he tried desperately to "get someone's attention on the serious constitutional rights violations posed here." First, he sought relief from the state Supreme Court and the case was dismissed. Then Walters filed an emergency Christmas Eve petition with the U.S. Supreme Court. Justice Anthony Kennedy denied the stay without comment. While Walters hasn't gotten a written opinion from the court, he thinks the petition was likely denied on procedural grounds.
Before being jailed, Wilson took down all 200,000- plus pornographic images after the state wouldn't offer guidance on what it deems "obscene," Walters said. The war images remain on the site, he said.
