AVN did a great job laying out the reasons why Sheriff Grady Judd, and Polk County law enforcement authorities, will lose the obscenity case against Phillip Greaves, who published a book about pedophilia. The AVN article is here:
There are a few other legal strategies that can be employed in this case, but we won’t let that cat out of the bag yet. The problem with the existing charge is that no images of real children are contained in the book written by Greaves. The Supreme Court, and the Second District Court of Appeal (in a case we won a couple weeks ago – Stelmack v. State), have unequivocally held that in order for media to be criminalized based on the appearance of children, the children must be ‘actual’ human beings, not pretend children, simulated children, cartoon children, or ‘descriptions’ of children.
Sheriff Judd throws around the word ‘pedophile’ and believes that is enough to throw somebody in jail. One can be a pedophile and not act on those urges. In a free country, we punish deeds, not words. There is no indication that Greaves engaged in any criminal activity with children, and he has denied ever molesting children, as an adult. Given the current child-sex hysteria prevalent in society, labeling somebody a ‘pedophile’ is tantamount to calling somebody a ‘witch’ in early America. Suddenly, all constitutional rights and liberties that would otherwise protect that person evaporate once they are labeled a witch/pedophile. Unfortunately for Sheriff Judd, that’s not how America operates. We tolerate offensive, indecent and even vile speech. Expressive works that make us uncomfortable must be protected by the First Amendment so that all other speech remains safely within the realm of Free Speech protection. If anyone needs a refresher course on that concept, see the People v. Larry Flint – a great movie. We require all new employees in our firm to watch that movie to remind them how this whole Free Speech thing works in the United States.
If the courts start carving our exceptions to the First Amendment for books that involve the issue of pedophilia, that will do untold damage to the First Amendment, and result in a slippery slope for future exceptions relating to other issues that might make some sheriff in some county uncomfortable.
Sheriff Judd was surprised that no other law enforcement agency in the country found a way to prosecute Phillip Greaves. That might cause a thoughtful law enforcement officer to step back and ask ‘why?’ Could it be that the First Amendment applies in every state, and prevents law enforcement from criminalizing the written word and mere ‘thought?’ Florida’s statute is no so unique that it is the only law in the country that can be used to criminalize words. Almost every state has obscenity laws (with the notable exception of forward-thinking Oregon.) The fact that no other cop in the country (including no other sheriff in the state of Florida) concluded that this material could be prosecuted might be a red flag, suggesting that perhaps there is a problem with initiating a prosecution.
Unfortunately, there is not much check on the prosecutorial discretion enjoyed by law enforcement when a runaway sheriff decides to mount an unconstitutional prosecution. It will take a strong judge with a comprehensive understanding of the constitution to put a stop to this, given the nature of the material involved. Sometimes the federal courts have to step in, and stop a bad faith state court prosecution. But the clear inapplicability of the statute involved will offer an easy way out of this case, once a judge takes a dispassionate look at what’s really going on here. In addition, the binding precedent from the U.S. Supreme Court in the FSC v. Ashcroft case;
along with the recent similar decision from the court of appeals overseeing Polk County;
compel a decision in favor of Mr. Greaves, and in favor of the First Amendment.