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Defense Files New Motions in Panhandle Obscenity Case

In an ongoing obscenity prosecution, Ray Guhn’s attorneys (disclaimer, my law firm represents Mr. Guhn), filed three key defense motions.

In order to sustain a prosecution for obscenity, the government must satisfy the Miller Test, which is:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions [1] specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

With respect to the “taken as a whole” question, the defense takes the position that a website is the “whole” under the third Miller prong. This seems proper, given that if you can’t tear one picture out of a book in order to prosecute for obscenity, why should you be able to pull selected images from a website?

In the two other defense motions, the defense team “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.(source) ”

I’d like to comment a lot more, but given that this is ongoing litigation involving my firm, I’ll limit this to this brief recitation and the external link.

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