The Pretexual Prosecution of an Adult Webmaster

nopicture.jpgEric Goldman (law, Marquette) has a very interesting post about the arrest and prosecution of the operator of an adult website where users could upload photos of people having sex. Goldman writes:

On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).

Let’s assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can’t understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230.

Wilson, the website operator, also allowed military personnel in Iraq and Afghanistan to load up photos of enemy corpses. Goldman writes:

There has been some speculation that Wilson has been singled out for prosecution because some in the military are unhappy about this aspect of his website.

If this is true, then the state prosecutors are engaged in a truly egregious abuse of their power–trying to censor socially-protected speech through an unrelated criminal prosecution.

Eric Goldman and I rarely agree on many issues, but I agree with him here that this prosecution is very troubling. I also think that Eric’s blog is terrific, and it is well worth checking out.

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