November 02, 2005
Adult Webmaster Criminally Prosecuted for User-Uploaded Photos
By Eric Goldman
Chris Wilson runs a website called NowThatsFuckedUp.com (first page is office-safe; I didn't look further!). The website describes itself as "an Amateur community for wife and girlfriend pictures," and the photos contain graphic depictions of people engaged in sex. All of the photos are uploaded by site users.
On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).
Let's assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can't understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230. It wouldn't matter if Wilson screened or edited the photos (as claimed by the probable cause report)--see, e.g., Ramey v. Darkside Productions, Schneider v. Amazon.com.
I recognize that 47 USC 230 hasn't been publicly tested in a criminal case, but the statute expressly does not preempt federal criminal law and expressly preempts all state laws. So this seems like an easy application of the statute, and I can't understand what the prosecutors are thinking.
However, there's a twist. The website also has allowed military personnel serving in Iraq and Afghanistan to upload photos of enemy corpses. (The idea was that military personnel couldn't easily use their credit cards from overseas. The webmaster was willing to waive the fees for active-duty personnel. The photos were a (perhaps twisted) way to prove that the users were actually serving on active duty.) There has been some speculation that Wilson has been singled out for prosecution because some in the military are unhappy about this aspect of his website.
If this is true, then the state prosecutors are engaged in a truly egregious abuse of their power--trying to censor socially-protected speech through an unrelated criminal prosecution. But even if this military angle isn't true, the prosecution is still an abuse of prosecutorial power--there is a federal safe harbor directly on point, and prosecuting the case despite that is irresponsible at best.
Some articles on this prosecution and the Iraq/Afghanistan photo angle:
Ynotmasters, October 27 (barely office-safe)
Orlando Weekly interview with Wilson's counsel, Lawrence Walters, October 13
AP Story, October 8
Reuters story, October 8
CNN story on soldiers trading photos for porn access, Sept. 28
AmericaBlog.com, Sept. 26 (reporting on the photos of dead Iragis/Afghanis)
East Bay Express story, Sept. 21
Wilson also has a defense site set up.
UPDATE: Wilson has pleaded no contest to 5 misdemeanor counts to resolve the matter. If those misdemeanor counts were based on user-uploaded content, then it's a shame he had to do even that.