Federal Prosecutor Makes A Name by Pursuing Pornographers
For years, prosecutors avoided obscenity cases, even as pornographic material flourished on the Internet. For one federal prosecutor, however, those who she deems to go too far can expect their day in court.
The New York Times reported in a story today that a 56-year-old woman named Karen Fletcher, who says that her stories of little girls (and the occasional boy) being raped, tortured, and killed are her way of working out personal issues arising from past abuse episodes, is being brought up on charges of obscenity by Mary Beth Buchanan, the U.S. Attorney for Western Pennsylvania.
Fletcher posts her stories on a Web site called Red Rose, which only has a couple dozen subscribers; but the content of her writings is so disturbing that Buchanan feels a need to see Fletcher prosecuted.
Under Supreme Court definitions defined three decades ago, in the 1973 case Miller v. California, a case pitting a mail-order pornographer against state authorities, work is obscene only when it contains no literary, artistic, or scientific merit, among other, hard to define, criteria.
The difficulty of determining when a given work has met the criteria for obscenity--whether it transgresses against "community standards" or not, for example, or contains literary or artistic "merit," or shows various actions in a definitively "offensive" light--has long been a sticking point.
A glance at today’s great literature, including James Joyce’s Ulysses. as well as works by Henry Miller, D. H, Lawrence, and William S. Burroughs, to say nothing of the Marquis de Sade, is in itself evidence that community standards are continually evolving, along with social conceptions of literature and art.
Moreover, pornography is not a matter of the printing press, book shops, and mail-order catalogues any longer: with the Internet legendarily having been driven to expand by pornography, which in itself is not illegal, and with Internet pornography now so widespread and literally global a phenomenon, prosecutors might understandably choose to refrain from pursuing all but the most egregious purveyors of explicit content.
For Buchanan, that line was crossed by Fletcher’s work.
During the Bush Administration, child pornography has been vigorously prosecuted. Though Fletcher has not been charged with child pornography, the content of her writings might be construed to tread close to it. What gives some legal scholars pause is the lack of images, either photos or drawings, to accompany the text.
The Supreme Court declined to specify that images are strictly necessary to make an author’s work liable to charges of obscenity, but images have been a component in successful obscenity cases before.
How far writers can go, whether in pursuit of literature or pornography, is a murky question; how far prosecutors can go, or should go, in pursuing obscenity cases is another matter, one involving finite resources as brought to bear against a market, and its providers, that far outstrip in terms of commerce and scope, a prosecutor’s reach.
Constitutional scholar Laurence Tribe, a Harvard Law School professor, could only speculate on the case’s likelihood of success, being quoted in the Times article as saying that, "the idea that the written word alone can be prosecuted pushes to the limit the underlying rationale of the obscenity law."
Even so, the fact that Fletcher’s writings involved characters who where young children was enough to bring Tribe to say that the case might well be prosecutable.
The Times story made note that Buchanan also has a case scheduled to go to trial against Extreme Associates, a California-based producer of pornography. In the case of Extreme Associates, the material is visual: films depicting women being raped and subjected to other humiliations.
Whether her cases are won or lost, Buchanan has made a name for herself. Said Todd Lochner, an assistant professor at Lewis & Clark College, "I can’t think of anybody who is as aggressive as she is" in prosecuting obscenity cases.
Buchanan picks her battles with care, choosing cases that might deter producers of obscene material.
Said Buchanan, "We want producers to know that these things are not tolerated," adding that a dearth of prosecutions during the Clinton Administration had left pornographers feeling that "anything goes."
Lochner, however, was skeptical that Buchanan’s efforts would amount to wide-spread change, saying that prosecutions, even after six years of the Bush Administration, were so uncommon as to be akin to "being struck by lightning."
In the lucrative field of pornography, that does not constitute much of a deterrent.
The questions of merit and community standards remain as hurdles for those cases that are brought to trial. The Times reported that Fletcher’s defense will likely argue that her stories are not, in fact, devoid of artistic or literary value; already, lawyer Lawrence Walters has argued on behalf of Ms. Fletcher that her stories, dissecting as they do the thought processes of child molesters, offer scientific value.
Fletcher’s claim that her writings help her deal with the anguish of her own past abuse are likely to play a role as well. The Donora, PA, resident stated that Red Rose was meant 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."
However, the explicit nature of the material and the fact that subscribers were charged a $10 fee may provide ammunition to the prosecution.
According to another lawyer for Fletcher, Jerome Mooney, the charge was barely adequate to pay for the writer’s expenses. Mooney also said that by requiring a charge on a credit card, Fletcher thought she was automatically screening out minors.
A total of 29 people subscribed to the site, and the Times story said it was likely that one, if not more, of those subscribers were connected with the police.
In their brief, the defense lawyers also pointed out that Fletcher’s writings have precedent in many literary and film productions, such as the Anthony Burgess novel A Clockwork Orange (made into a film by Stanley Kubrick), or the Cartoon Network’s often-bawdy satire South Park... not to mention a novel by a former Bush Administration associate, I. Lewis "Scooter" Libby, Vice President Dick Cheney’s former chief of staff.
In Libby’s novel, a 10-year-old girl is sexually assaulted by a bear, into whose cage she is forced with the idea that the animal will force her to become sexually submissive.
