SARASOTA, FL – Clinton McCowen, AKA “Ray Guhn”, has entered a plea of Not Guilty to charges of racketeering, obscenity and prostitution, the charges on which he was arrested by the Escambia County Sheriff’s Office in late June.The charges are related to McCowen’s alleged involvement with the website CumOnHerFace.com, a popular site which largely features “bukkake” and other forms of “facial cumshot” photos and videos.
Florida authorities allege that much of the content for the site was produced in the Pensacola area, and includes over 100 local men and women as performers, and contend that the resulting content is “obscene” under the definition of obscenity in Florida statutes. As with other jurisdictions across the country, however, Florida’s definition of obscenity is vague, and relies upon the application of “community standards,” standards which vary by location, and change over time.
“This case raises significant constitutional questions regarding application of the obscenity law to the material intended for Internet distribution,” says Lawrence G. Walters, Esq. of Weston, Garrou, DeWitt & Walters, the firm representing McCowen.
As Walters notes, courts have wrestled with the question of whether such community standard tests are applicable with respect to content which is distributed online, and the Supreme Court has yet to issue a ruling which addresses that question, despite having two occasions in recent years which presented the opportunity to clarify the issue.
In addition to the obscenity charges, Escambia County authorities also assert that, under Florida law, paying performers to engage in sexually explicit acts on camera constitutes “prostitution.”
“This is a particularly disturbing allegation, and perverts the use of the prostitution statute in a way that allows the government to engage in censorship of erotic materials,” observes John H. Weston, senior partner in Weston, Garrou, DeWitt & Walters. “This case represents nothing less than an attempt to eliminate production of sexually-explicit materials in the state of Florida.”
McCowen’s arraignment is scheduled for Friday, September 14th; however, as McCowen has already entered his plea, he will not actually appear in court on Friday, Walters says.
The question of whether paying porn performers is tantamount to prostitution is a question that has only been settled in the state of California. In People v. Freeman, the California Supreme Court held that pandering and prostitution laws cannot be employed by the government as a means to suppress the creation of erotic materials that are protected by the First Amendment.
The standard laid forth in People v. Freeman has not been adopted by other states, however, leaving the prostitution question very much open throughout the rest of the country.
“Sexual conduct filmed for a movie is simply not prostitution; where sexual activity is engaged in by paid performers for the purposes of being recorded on camera, and intended for a viewing audience, the legal analysis changes dramatically,” says Weston. “In such instance, the government is precluded from using the prostitution laws, or similar back door censorship theories as a means of avoiding the First Amendment protection otherwise afforded to the creation of sexually oriented content.”
Adult content and productions are presumed to be protected by the First Amendment, unless and until a judge or jury finds the material in question to be “obscene” according to the standards set forth in the landmark case of Miller v. California.
Beyond the obscenity and prostitution charges, McCowen also faces racketeering charges. According to Walters, although racketeering laws were enacted to combat organized crime, there is a low bar for bringing racketeering charges under Florida law; in Florida, as few as two instances of prostitution or obscenity permits prosecutors to file racketeering charges, in certain circumstances.
Penalties for racketeering are very stiff, as well; the charge carries a prison sentence of up to 30 years, and a fine of $10,000.
“We intend to contest these charges against our client vigorously on every front, constitutional, statutory and factual,” says Walters. “We think it clear that this case stems more from hostility toward erotic expression than from any legitimate law enforcement interest.”
