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LAKELAND, FLA---The U.S. Supreme Court refused to grant Christopher Wilson's emergency request for bail that would have released him from the Polk County Jail where he is being held on 301 obscenity charges relating to his operation of a website.
Wilson, 28, a former police officer, claims he has a First Amendment right to allow alleged pornographic materials to be posted on his site.
Wilson was arrested in October by Polk County officials for alleged sexual conduct on his website. He had been free on $151,000 bail since his arrest Oct. 7 but trial court judge J. Dale Durrance revoked his bail and sent him to jail, ruling that Wilson had violated his pretrial release by allowing new sexually explicit photographs to be posted to the site.
Wilson's attorney, Larry Walters, said that Wilson had removed the sexual photos and videos from his website several weeks ago but the judge wasn't swayed. The judge ordered that Wilson would remain jailed until his next court appearance which is scheduled for Feb. 7.
The American Civil Liberties Union of Florida, the Free Speech Coalition and the First Amendment Lawyers Association late last week asked the 2nd District Court of Appeals via emergency petition to release Wilson but the DCA refused pending a full hearing.
On Friday, the Florida Supreme Court rejected an emergency motion that Walters filed seeking bail for Wilson, saying that it did not have jurisdiction.
Late Saturday, the U.S. Supreme Court agreed to consider if Wilson should be granted bail, agreeing to receive a filing by email for immediate consideration.
However on Sunday, Christmas Day, the Supreme Court rejected Wilson's attempt to reverse the decision of the 10th Judicial Circuit Court and Judge Durrance to revoke Wilson's bail. No reason was given for the denial.
Walters will be filing another motion with the 2nd District Court of Appeals for Wilson's release.
"Sexual expression in cyberspace is protected by the First Amendment," said Gainesville attorney Gary Edinger, who submitted the amicus brief to the DCA last week on behalf of the three organizations. "It's unprecedented for government officials to use imprisonment to prevent the distribution of material over the Internet."
In a 19-page friend-of-the-court brief, the three organizations asked the 2nd DCA
to reverse a lower court ruling by Durrance authorizing the Polk County Sheriff's Office to revoke Christopher Wilson's bail and throw him back in jail simply because there was "probable cause" to believe that pictures on Wilson's Web site were allegedly obscene.
Wilson made headlines in recent months when U.S. military officials discovered that soldiers in Iraq and Afghanistan were sending him gruesome images of war in exchange for free access to a site that allows members of the public to post and view amateur pornographic photos and videos. Wilson, who operated the site from his Lakeland home, then posted the violent war photos on the site as a way to help spark debate about U.S. politics.
On Oct. 7, he was arrested by Polk County Sheriff's Officers on obscenity charges for posting - not the violent war photos - but the amateur photos submitted by other people. He was released on $151,000 bond, and then while awaiting trial, moved to Orange County, Florida, where he continued operating the site, which is hosted in the Netherlands. The State Attorney's Office then filed a motion to throw Wilson in jail for operating the site outside of Polk County - a violation of the conditions of this release, county officials argued. A judge agreed with the county on Dec. 16 and he is currently being held without bond in the Polk County Jail.
"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 Web site is illegal," said Howard Simon, executive director of the ACLU of Florida. "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?"
"This case is typical of how obscenity law can be misused to censor unpopular speech," said Michelle L. Freridge, executive director of the Free Speech Coalition. "We are proud to stand with the ACLU and FALA in support of Chris Wilson, and we look forward to an expeditious and positive decision by the Second District Court of Appeal in this matter."
The Free Speech Coalition is the trade association for the adult entertainment industry. With over 3000 members from every area of the industry, FSC lobbies on behalf of the industry in Sacramento, California and Washington, D.C., and enters into litigation when all other avenues have failed. The Wilson situation is of profound concern to the FSC because the Constitution of the United States expressly requires careful procedures before a court can say that expression exceeds constitutional protection. In this case, those procedures appear to be seriously lacking.
According to the sheriff, 20 films and 80 photos are involved in the charges against Wilson but none involve photographs of war dead. The controversial website has obtained international attention and the sheriff said that sheriff's investigators had spoken with officials from the U.S. Army Criminal Investigation Division regarding Wilson.
Prior to his arrest, a Polk County judge found probable cause that the films and photos in question were obscene as under the law, in order to make an arrest under the obscenity statute, a judge must first make a determination that the material in question is obscene. A search warrant was issued and investigators seized computers from Wilson's home.
Wilson claims that because his site is hosted by an overseas server, he is not violating any laws in Polk County. The state attorney's office says that it makes no difference where his server is because Wilson lives in Polk County and is operating the website from his home.
His attorneys now argue that because he's moved to Orlando which is in Orange County, Polk County can't prosecute him for alleged criminal acts that occur outside of the county. They also argue that no one from the sheriff's office told Wilson to stop posting materials to the site.
Wilson's attorney's have tried to remove Judge Durrance from the case, saying that Wilson can't get a fair hearing because Durrance suffers from extreme visual impairment.
They claim that the judge's visual impairment will prevent him from "fully and fairly evaluating the allegedly obscene materials in accordance with the appropriate legal standards".
Durrance refused to disqualify himself.
Video clips from Wilson's website were played in the courtroom on a laptop computer which Durrance watched before issuing his decision to revoke Wilson's bail. 12-26-05
© 2005 North
Country Gazette
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