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'Rare' obscenity case targets writings 

U.S. prosecutes woman for explicit fiction posted on Internet

Paula Reed Ward, Pittsburgh Post-Gazette, October 28, 2006

Obscenity charges in the United States are relatively rare these
days, and in cases involving the written word, they're 
extraordinarily so.

But just last week, a Donora woman was arraigned in federal court on
six counts of distributing obscenity over the Internet.

Karen Fletcher, 54, is accused of writing dozens of fictional
stories that involve the rape, torture and murder of children,
including infants, and posting them to the Internet. She reportedly
then sold subscriptions to the site, at $10 per month.

Ms. Fletcher's defense attorney, Warner Mariani, said he was
astounded by the charges filed against her. A reader can find her
words to be vile and reprehensible, he said, but that is not enough
to censor her. 

"You don't defend what she's writing," he said. "You defend her
right to write it."

Laws date to 1600s

Obscenity laws were first applied to written words in England in the
1600s. Then, according to Kevin W. Saunders of the Michigan State
University College of Law, the regulations were designed to protect
religious figures who often were targeted in sexual satire.

Those charges were initially brought in ecclesiastical courts, but
then in the 1800s it became part of the common law.

In the United States, throughout the 1950s and 1960s, obscenity
charges were filed often against the authors of pulp novels, said
Reed Lee, an attorney in Chicago who specializes in adult
entertainment law.

But by the end of that era, the Supreme Court started reversing
those convictions without filing written opinions to explain its
reasoning, Mr. Lee said. Since that time, prosecutions have focused
almost exclusively on graphic material.

In fact, the U.S. Supreme Court has never upheld an obscenity
conviction related only to written words, even though there are no
decisions precluding it from doing so.

Mr. Saunders believes that can be explained by the fact that it
takes more effort to be offended by words.

"You have to visualize with a book," he said.

Pictures, however, create an immediate reaction.

Mr. Lee agreed.

"The possibility of the kind of visceral offense that comes with a picture that pops up in your spam is virtually zero with a story," he said. "You can always stop [reading] before you get that reaction. You have to read and understand the words before offense is formulated."

In 1973, the Supreme Court decided the case that still stands as
precedent today: Miller v. California.

Under the so-called Miller test, to prove material is obscene, the
prosecution must convince a jury of three things, based upon
contemporary community standards: The materials must be patently
offensive; they must appeal only to prurient interests; and they
must have no serious artistic, literary, social or political value.

Mr. Lee believes society may be at a point -- with the barrage of
images of sex and violence visible on a daily basis -- that written
words might no longer be enough.

U.S. Attorney Mary Beth Buchanan disagrees. 

"Whatever the current cultural standards might be, I don't believe the citizens of Western Pennsylvania will permit the distribution of stories containing the depiction of the rape, torture and killing of infants," she said.

Obscenity laws exist to protect the morals of society, promote
public safety and prohibit other ancillary crime involving violence
and deviance, she said. 

"There have to be limits, and members of society have the right to set those limits," Ms. Buchanan said.

Mr. Saunders, author of "Saving Our Children From the First
Amendment," said that Ms. Buchanan is the initial gatekeeper on the

"It's her role to bring it to the community and see what the
community thinks," he said. "What's obscene in Mississippi might not be obscene in New York."

Obscenity laws, which only prohibit the distribution of the
material, were always designed to be a very narrow exception to the
First Amendment, Mr. Lee said, and he wants to ensure that it stays
that way.

"Clearly, it's a form of censorship," Mr. Saunders agreed. "It's just that some censorship is legal."

Conviction seen as unlikely

In August 2003, Ms. Buchanan filed charges against Extreme
Associates Inc., a California company that makes graphic videos
showing women being raped, having their throats slit and being
defecated on.

That case was initially dismissed by the trial judge, who found that
federal obscenity laws violate the Constitution. The 3rd U.S.
Circuit Court of Appeals reinstated the case, however, and it is
still working its way through the system.

But there is a significant difference between the material in the
Extreme Associates case and those in Ms. Fletcher's.

Extreme Associates produces films, moving images of live human
beings who appear as though they are being tortured.

In Ms. Fletcher's case, there is none of that. Her stories include
some of the same themes -- kidnapping, rape, torture and murder --
but the characters are fictional. There are no images, no actors, no
live people at all.

Because of that, Mr. Saunders believes it's unlikely the prosecution
will win a conviction in the Fletcher case. Without pictures or real
people, he said, it's hard to prove the materials appeal only to
prurient interest.

But, he added, 

"if you put stuff together that's particularly egregious, it might work."

That is exactly what Ms. Buchanan expects to happen. She argues that
stories like Ms. Fletcher's could encourage pedophiles and other
criminals to act out the words.

Mr. Saunders agreed that's possible, but he said some studies have
shown that kind of pornography might serve to displace those urges.

Either way, Ms. Buchanan said, the charges in this case target a
violation of interstate commerce. 

"This is not a case involving criminal action against an 
individual's private thoughts or words," she said.

Instead, Ms. Fletcher's crime started when she sent her stories out
on the Internet for anyone to read.

Mr. Mariani argues that filing charges in a case like this is a step
down a slippery slope.

For example, he asked, will the government begin charging authors of
nonfiction books who describe crimes involving children, or the news
media that report such crimes?

Ms. Buchanan dismissed that, saying that in those examples, there
would likely be some social or political value to the words, meeting
the prescribed test from the Supreme Court. For Ms. Fletcher, she
added, there is no such value.

Mr. Lee said that's not necessarily so. Ms. Fletcher's stories could
have some literary value, if jurors find that they accomplish a goal
of fiction -- conveying a theme of interest to the human intellect.
If that means confronting the darkest human emotions starkly, he
continued, then that is still value.

Mr. Mariani is not worried about taking the case to a jury.

And, according to Mr. Lee, maybe he shouldn't be.

The president of the First Amendment Lawyers Association, Mr. Lee
has represented defendants in about a dozen obscenity cases -- six
of those were tried before juries and he's never had a conviction.

This is the first time Ms. Buchanan's office has brought stand-alone
obscenity charges related to writings. In one past instance, that
charge was filed in conjunction with child pornography counts.

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