A Prosecution Tests the Definition of Obscenity
By
NEIL A. LEWISPublished: September 28, 2007
PITTSBURGH — Sometime early next year, Karen Fletcher, a 56-year-old recluse living on disability payments, will go on trial in federal court here on obscenity charges for writings distributed on the Internet to about two dozen subscribers.
In an era when pornography has exploded on the Web almost beyond measure, Ms. Fletcher is one of only a handful of people to have been singled out for prosecution on obscenity charges by the Bush administration. She faces six felony counts for operating a Web site called Red Rose, which featured detailed fictional accounts of the molesting, torture and sometimes gruesome murders of children under the age of 10, mostly girls.
How Ms. Fletcher came to be selected for federal prosecution among the countless pornography purveyors is a vivid illustration of the fractured and uncertain state of the enforcement of obscenity law in the nation.
Most prosecutors are generally reluctant to bring obscenity cases, regarding them both as difficult and a diversion of resources better spent on other crimes. Moreover, the explosion of Internet pornography from sources around the world has convinced many law enforcement officials that it is all but impossible to have a significant impact on the issue.
The Fletcher case has been brought by Mary Beth Buchanan, the United States attorney for Western Pennsylvania, who is regarded by many people in the pornography industry and by outside analysts as the government’s most aggressive opponent of the spread of pornography in the nation.
Ms. Buchanan, the 44-year-old daughter of a steelworker who went through law school as a single mother, is disdainful of prosecutors who have avoided taking on obscenity cases. Unlike her counterparts, she said in a recent interview, “I’m not afraid of the challenges, legal or otherwise, here.”
What has attracted the attention of First Amendment scholars and lawyers is that Red Rose — which Ms. Fletcher says is an effort to help her deal with her own pain from child sexual abuse — was composed entirely of text without any images.
Although a narrowly divided
Supreme Court said in 1973 that images were not necessary to label a work obscene, there has not been a successful obscenity prosecution in the country that did not involve drawings or photographs since then.
Courts have overturned or blocked convictions connected to other nonillustrated books, including the well-known “Fanny Hill: Memoirs of a Woman of Pleasure,” on the basis that sexual images have a fundamentally different impact than words alone.
Prof.
Laurence H. Tribe of Harvard Law School, a leading constitutional scholar, said that although the court had not ruled out the possibility that text alone might be obscene, “the idea that the written word alone can be prosecuted pushes to the limit the underlying rationale of the obscenity law.” But Professor Tribe noted that even though the Fletcher case did not involve images, courts might view “patently offensive descriptions of sexual acts with children” as prosecutable under obscenity laws.
About the same time the Fletcher case goes to trial, Ms. Buchanan will be prosecuting a second obscenity trial in the same courthouse involving a large-scale producer of pornographic films called Extreme Associates, based in California. The company’s films depicted women being gang-raped and defecated on.
In addition to those cases, Ms. Buchanan said in the interview that she had several more in the pipeline.
Todd Lochner, an assistant professor at Lewis & Clark College in Portland, Ore., who has written about prosecutorial decision-making in obscenity cases, said that Ms. Buchanan had established herself as the nation’s foremost obscenity prosecutor. “I can’t think of anybody who is as aggressive as she is,” Professor Lochner said.
Ms. Buchanan said she selected cases that she hoped would have deterrent effects on other pornographers.
“We want producers to know that these things are not tolerated,” she said. Ms. Buchanan said that the rarity of obscenity prosecutions during the eight years of the Clinton administration meant that the pornography industry had come to believe that law enforcement had tacitly “agreed to an anything-goes approach.”
Professor Lochner said he doubted Ms. Buchanan’s efforts would have much of a deterrent effect because they were so few that pornography producers had come to regard being prosecuted by her or anyone else as “being struck by lightning.”
While pornography by itself is not illegal, it can be prosecuted as obscenity if it fits the definition laid out by the Supreme Court more than 30 years ago. Under that ruling, Miller v. California, a work may be deemed obscene if, taken as a whole, it lacks artistic, literary or scientific merit, depicts certain conduct in a patently offensive manner, and violates contemporary community standards.
Despite stirring anti-pornography speeches by both heads of the Justice Department during the Bush administration —
John Ashcroft and, more recently,
Alberto R. Gonzales — there have been fewer than two dozen federal obscenity prosecutions that did not also involve charges of child pornography. The making and possession of child pornography, a separate category, has, however, been prosecuted widely. (Ms. Fletcher is not being prosecuted for any violations of the child pornography laws.)
Michael B. Mukasey, the former federal judge nominated to be the new attorney general, has no history of taking a position on the issue of obscenity, said lawyers from both liberal and conservative groups who have researched his record. Ms. Buchanan said the Fletcher Web site and the Extreme Associates videos were “way beyond patently offensive.”
Ms. Fletcher’s lawyers argued that courts should finally declare that text-only works are not obscene. But Judge Joy F. Conti of Federal District Court here ruled on Aug. 30 that a 2005 appellate court victory for Ms. Buchanan in the Extreme Associates case ruled out that possibility. The United States Court of Appeals for the Third Circuit ruled that trial judges are still obligated to follow long-established obscenity definitions until and unless the Supreme Court explicitly rejects it.
The Fletcher trial is likely to focus on the defense’s main argument, that Ms. Fletcher’s stories, however lurid, have some literary and scientific merit. Lawrence G. Walters, a Florida lawyer who is part of the defense team for Ms. Fletcher, argued in a court pleading that the stories had scientific value because they demonstrated the thinking of child predators.
In an affidavit, Ms. Fletcher described herself as a victim of child sexual abuse and said that writing her stories helped alleviate her torment.
Ms. Fletcher, who lives in Donora, Pa., in a ramshackle house, said she ran away from home at 14. She said she wanted her Web site to be a “safe place for cathartic writing, for people to express themselves and use their own imagery, not to have pictures to potentially excite and be suggestive to readers.”
The indictment, which has the potential for a long prison term, charges Ms. Fletcher with commercial involvement with obscenity because she charged people $10 to join her group. Jerome Mooney, another of her lawyers, argued in court that the fee barely covered her expenses and was imposed only because she believed using a credit card requirement would prevent minors from signing into the site. In the end, only 29 people subscribed, at least one of whom is likely to have been a police informant.
In their brief, the defense lawyers argued that the Fletcher stories, however lurid, were also comparable to many scenes found in literature and television. They cited the 1962 novel “A Clockwork Orange,” by Anthony Burgess, and episodes of the cartoon show “South Park.” They also cited a scene in a 1996 novel by
I. Lewis Libby Jr., the former chief of staff to Vice President
Dick Cheney, in which a 10-year-old girl is placed in a cage with a bear who forces himself upon her sexually to habituate her to sexual submission.
The lawyers argued that Ms. Fletcher’s stories were no more lurid than the novel by Mr. Libby.
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