Greaves Arrest and Extradition Poses Grave Legal Questions (Part 1)

Obscenity lawyer Larry Walters told AVN on December 21st that the prosecution of Phillip Greaves under Florida obscenity law may be fatally flawed on the basis that Greaves was charged under a statute not inapplicable to his text, "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct." AVN's explanation was rather sketchy, so I'll try to be more thorough here.

In order to be extradited from Colorado to Florida, Greaves had to be charged with a felony -- and was, under Florida Statutes 847.011(1)(c). This statute provides that a person who commits a violation of paragraph 847.011(1)(a) -- here, sending an "obscene" publication into the State of Florida -- is guilty of a felony if the publication "is based on materials that depict a minor engaged in any act or conduct that is harmful to minors." In other words, if the publication is not based on such materials, a violation of paragraph 847.011 (1)(a) is only misdeamor and therefore non-extraditable.

In making his argument, Mr. Walters focuses on the word "depict" in paragraph (c) which, he argues, must apply only to visual images, not written descriptions. The reason is two-fold. First, under paragraph 10 of Section 847.001 of the Florida statute, "obscene" means

"the status of material which:
(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value." [Emphasis added.][1]

By leaving out the word "describes" from 847.011(1)(c), Mr. Walters argues, the legislature meant to exclude written descriptions and to include only visual depictions.

Second, Florida statutes paragraph 847.011(1)(d), which follows the paragraph under which Greaves was charged, provides that "[a] person’s ignorance of a minor’s age, a minor’s misrepresentation of his or her age, a bona fide belief of a minor’s age, or a minor’s consent may not be raised as a defense in a prosecution for one or more violations of paragraph (a)...." Read in para materia with paragraph (c), paragraph (d) strongly suggests that the context of paragraphs (c) and (d) is that of visual depictions of actual minors.

There are three weaknesses in this argument. The first is that the definition of "depict" already encompasses "describe". (See, for example, the Merriam-Webster Dictionary, which defines "depict" as "(1) to represent by or as if by a picture..., and (2) describe." The second flaw is that paragraph (d) could theoretically apply to written descriptions of acts involving an actual minor. There is no limiting language for its interpretation. Finally, paragraph (a) also identifies sound recordings among the possible "obscene" media being criminalized. Sound recordings do not depict (as by visual images) or describe (as by words). Just as an example, is it plausible that the Florida legislature meant to exclude from the paragraph (c) felony provision an "obscene" sound recording of a 12-year-old giving a blowjob if there was no visual depiction to accompany it?

While it is entirely logical that the omission of the word "describes" from paragraph 847.011(c) should exclude written descriptions, this is a lawyer's argument, likely to be recognized only by a judge with a high degree of respect for the rule of law -- so high that he is willing to overlook his personal moral animus against a defendant like Greaves and narrow the reach of the statute. This would not be Polk County Judge J. Michael McCarthy, who issued the arrest and extradition warrant against Greaves. For a Judge like McCarthy, applying the age-old method of result-oriented jurisprudence, the Merriam-Webster Dictionary will be quite sufficient.

In Part 2, I will deal with two constitutional arguments Greaves may have: first, the possibly unconstitutional application of the Florida obscenity statute to Greaves' text on the basis of impermissible viewpoint discrimination; and second, a challenge to paragraph (c) on equal protection grounds, following principles set forth in Ashcroft v. Free Speech Coalition and Lawrence v. Texas.

Endnotes.

[1] This test was adopted by the Florida courts following the Supreme Court decision of Miller v. California and was subsequently written into the Florida law. The Miller test has been the test for obscenity under both federal and state law since 1973.