News.com reports a story on the arrest of a Florida web-site operator who created a controversy some time ago by posting the grimsy photos of corpses of people killed in Iraq and Afghanistan. However, the arrest in this case seems to be seemingly unrelated to the dead bodies controversy - Christoper Wilson was arrested allegedly on bscenity violations.

Although the article does not go into clear details, it may seems that the charges are under state scenity laws as Florida’s Polk County Sherriff was making a statement on the case. Alternatively, charges in many cases can be brought under the federal obscenity laws, 18 USC §§1460-1470, although the federal obscenity laws usually have a "transport in commerce among states" requirement which may or may not be easily met.

Obscenity on the Internet is not really a common crime. The roliferation of pornographic and other objectionable by some websites has rendered many law enforcement agencies unable to devote the resources to prosecute even a small portion. Generally, prosecution is reserved for some "special" cases. This highly selective approach may create an environment for bias and targeted prosecution, especially where there are other concerns involved, e.g. political or personal motivation by the prosecution.

With the sparse facts that seem to be released to the publit at this point, Mr. Wilson’s arrest in Florida seems to be one of those specially-motivated prosecutions that may not have happened had he not posted the war photos on a previous and seemingly unrelated incident. The fact that the prosecution could not go after Mr. Wilson previously for posting the war photos (not enough evidence, statute not broad enough to cover the facts) may indicate that the prosecution put him on a "sticky" note and waited for a second chance - obscenity in this case.

Obscenity in General

Obscenity las has been limited by the U.S. Spreme Court’s interpretation of the First Amendment. To be beyond the protection of the First Amendment as obscene the content must meet a three-part test:

1. whether an 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 or describes, in a patently ofensive way, sexual conduct specifically defined by the applicable state law, and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Obscenity in this case

It is very difficult to evaluate the strength of this obscenity case without the much needed factual details. The News.com article indicates that the charge is based on pornographic materials which may be harder to meet the Miller test, especially if access to the photos was restricted in some way to authorized users only. Additionally, the inescapable connection between this incident and the war photos incident may give the defense a strong argument that the current prosecution is motivated by expression of political ideas which strengthens the First Amendment protection.

This is a very preliminary overview of this controversy on a *very* sparse facts. More will follow shortly as more facts become available.

Fact Update:
The site in question is http://www.nowthatsf***edup.com/ [full the gaps appropriately.]  It seems to has the proper disclaimer and requirement that people 18 or over enter. Also, Mr. Wilson has been charged with 100 counts of distribution or transmission of obscene materials, 100
counts of offering to distribute or transmit obscene materials, and 100
counts of possession of obscene materials. All are misdemeanors. [Thanks Interstate4Jamming]