Breaking Down a Pornography Possession Case in Hillsborough County
The First Amendment protects most pornographic videos, literature, and so on. But the First Amendment doesn’t protect obscene material or child pornography.
Obscenity is somewhat vague. Supreme Court Justice Potter Stewart famously wrote that I cannot define obscenity, but “I know it when I see it.” Legally, material is obscene if it violates contemporary community standards and has no serious literary, artistic, political or scientific value.
Child pornography is less subjective. Usually, a child is anyone under 18. Possession of pornographic pictures or other materials which involve children under 18 is illegal. Production of child pornography, usually asking a child for a nude photo or encouraging a child to perform a sex act, is also illegal.
If officials charge a person with possession of child pornography or obscene material, several responses are available to a Tampa pornography charges lawyer.
Procedural Defenses
For the most part, pornographic magazines, video cassettes, and other such items are a thing of the past. That’s especially true regarding child and obscene pornography. Years ago, publishers sold magazines with names like Lolita and courts struggled to define what’s obscene, as Justice Potter’s remark shows. But generally, the law in both areas is now well-settled.
Definitions of illegal pornography might be relatively clear. The tactics that police officers use to obtain illegal pornography remain controversial.
Smartphones are a good example. Courts have consistently held that, for any content past the lock screen, people have a reasonable expectation of privacy. Therefore, officers need search warrants, which must be based on probable cause, to examine phones. Or, a narrow search warrant exception must apply.
Judges almost never agree to issue search warrants in these cases. Usually, at best, officers suspect that a defendant might have illegal pornography on his/her phone. A suspicion isn’t probable cause.
Consent is the most common search warrant exception. Usually, only the owner can give consent. It’s pretty easy to tell who owns what phone. Consent is an affirmative and voluntary act. “I guess I can’t stop you” is not affirmative consent to search. Furthermore, if officers bully, coerce, or blackmail owners into consenting, eventually they cross a line and that consent is involuntary.
Substantive Defenses
Possession is more than proximity. A person doesn’t legally “possess” all information on a cell phone or computer. Prosecutors must also prove knowledge and control. Furthermore, they must prove these elements beyond any reasonable doubt,
Small thumbnail images in a defendant’s spam email folder are a good example. These images definitely pass the proximity requirement. They’re only a few swipes away. However, the defendant might not know the image was illegal, since it’s so small. That’s if the defendant knew the image was present at all, which is a pretty big “if.”
Knowledge and control are even harder to prove if, as is often the case, multiple people had access to the device’s username and password.
Affirmative Defenses
The entrapment defense occasionally applies in online solicitation cases. An undercover officer poses as a teenager whom the defendant agrees to meet for sex. Or, the defendant may ask for a pornographic image.
This defense is difficult for a Tampa criminal defense attorney to establish, mostly because the defendant must have no predisposition to commit the offense. If the defendant was in a sex-themed chat room, the defendant had some predisposition to commit an obscenity or child pornography-related offense.
Reach Out to a Hard-Working Hillsborough County Attorney
A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters in Pinellas County and nearby jurisdictions.
Source:
mtsu.edu/first-amendment/article/1004/obscenity-and-pornography
