Is Kraft video evidence or pornography?

Photo illustration by Lesley Becker/Globe Staff; Adobe; Globe file photo

Robert Kraft received a loud standing ovation when his image appeared on the TD Garden Jumbotron during Sunday’s Celtics-Pacers playoff game.

He acknowledged the adoration with a wave and fist-pump. And why not? His base still loves him. And the Florida prosecutors who charged him with soliciting sex are starting to look like quarterbacks who can’t find a receiver.

Their problem: There’s no evidence of human trafficking at the Orchids of Asia Day Spa. Under Florida’s Sunshine law, that may not technically matter in deciding what’s considered a public record. But in the court of public opinion, that major concession bolsters Kraft’s case for keeping an embarrassing video out of the public domain. And without the video, which allegedly shows him engaged in sexual acts, it’s going to be hard to score a prosecutorial touchdown against Kraft.

The New England Patriots owner is charged with two counts of misdemeanor solicitation. Without the video, which supposedly shows Kraft engaged in sexual acts at the spa in Jupiter, Fla., it’s hard to prosecute the solicitation case, unless the women involved testify as witnesses.

Meanwhile, the retreat on human trafficking rightly puts prosecutors on defense.

Human trafficking was the reason a judge gave police permission to access private property and set up hidden cameras. Following that, as a Florida newspaper editorial noted, Florida law enforcement officials announced what they described as “the breakup of a massive human trafficking ring,” which allegedly enslaved women and was supported by men who were described by Martin County Sheriff William Snyder as “monsters.” In an op-ed for The Boston Globe, Snyder also wrote of enslaved women “selling sex acts” in “strip mall brothels” where they serviced an average of eight men a day. But so far, only one person has been charged with trafficking — and not in Jupiter.

If law enforcement officials inflated or made up their human trafficking suspicions, the so-called sneak-and-peak warrant granted to police was “founded on a fiction” — just as Kraft’s lawyers argue. In a televised court hearing on the issue of sealing the video, state attorney Greg Kridos said the case initially “had all the appearances of human trafficking.” But now, he said, “no one is being charged with human trafficking. There is no human trafficking that arises out of this investigation.”

A number of media outlets, including the Globe, say that under Florida’s Sunshine Law, the video is a public record. Laws should be applied equally. Getting an exemption shouldn’t depend on a defendant’s ability to pay for enough lawyers to field a football team. But whether or not human trafficking is involved, there’s a real queasiness factor to releasing this video.

Kraft doesn’t deny he’s in it, so it’s not a question of proving his identity.

His lawyers argue that releasing it to the public violates his constitutional rights to privacy and a fair trial. Media lawyers argue there’s a public interest in viewing the sordid details of ordinary day spa prostitution. Given Kraft’s insistence that he did nothing illegal, there’s solid reason to see exactly what the video shows, in terms of exchange of money. However, balance that interest against the thought of being as humiliated and exposed as Kraft, and the average man or woman has reason to recoil. Also, as one of Kraft’s lawyers argues, the “eyeballs and clicks” the video would get on media websites no doubt inspire some of the zeal for obtaining it.

Take human trafficking out of it and it’s just naked men allegedly paying for sexual acts — “basically pornography,” as Kraft’s lawyer put it.

For Kraft, that’s what victory now looks like.