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:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions  specifically defined by applicable state law,
- 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.