Textual Obscenity?

On August 7, Karen Fletcher, a 56-year-old agoraphobic, was sentenced to five years probation after she pled guilty to violating federal obscenity law.

According to a story in the Pittsburgh Post-Gazette, she has spent the last seven years in her home, unable to leave. The charges against her were based on stories she wrote and published on a website: the Red Rose Stories website. The stories described the rape, murder and torture of children, often very young children.

Ms. Fletcher said she began writing the stories as a kind of therapy, but then began posting them on the website. People who became members of the site could read the stories online. It cost $10 to become a member, and when she was prosecuted she had 10 subscribers.
Ms. Fletcher said she began writing the story as a way to help her deal with her own sexual abuse and what she called her “monsters.” She said creating these fictional monsters, who were so much worse than the monsters she’d encountered in real life, somehow made it easier for her to deal with the horror she had apparently experienced in her dealings with real life monsters. She also said that in the stories awful things were happening to others, not to her, which also helped her deal with her fears.

Why was she prosecuted for obscenity? Well, as I understand it, the U.S. Attorney for the Western District of Pennsylvania is aggressively cracking down on obscenity and child pornography. While child pornography might seem the logical charge here, the stories do not involve the victimization of any real children and therefore could, at most, constitute virtual child pornography. As I’ve noted before, the U.S. Supreme Court held several years ago that the First Amendment prohibits prosecuting people for creating and publishing virtual child pornography.

But what about obscenity? We usually think of obscene material as visual material – photographs, videos, even drawings. Ms. Fletcher’s work is purely textual. Can it quality as obscenity?

The Supreme Court addressed the issue of text as obscenity in 1978, in Kaplan v. California, 413 U.S. 115 (1973). Here are the facts in that case:

Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 ‘adult’ bookstores in . . . Los Angeles, California. On May 14, 1969, . . . an undercover police officer entered the store. . . . The officer then asked petitioner if he had ‘any good sexy books.’ . . . . At petitioner's recommendation, . . . . the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2 [which made it a crime to distribute obscene material].

Kaplan v. California, supra.

Kaplan argued that, as text, the book was protected by the First Amendment and was therefore not obscene. The Supreme Court phrased the issue in the case this way:

This case squarely presents the issue of whether expression by words alone can be legally ‘obscene’ in the sense of being unprotected by the First Amendment. When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U.S. 476 (1957). "Obscenity can . . . manifest itself in conduct, in the pictoral representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books.

wrote aboutKaplan v. California, supra.

The Kaplan Court held that a book – and, presumably, other text – is not entitled to First Amendment protection “merely because it has no pictorial content.” It found that the state of California could “reasonably regard the ‘hard core’ conduct described [in the book] as capable of encouraging . . . antisocial behavior, especially in its impact on young people.” Kaplan v. California, supra. It remanded the case to have a lower court decide if the content in the book was, in fact, obscene under the “community standards” test I wrote about recently.

I assume Ms. Fletcher was charged with, and pled guilty to, violating 18 U.S. Code § 1466(a). This is the federal statute that makes it a crime to distribute obscene material: “Whoever is engaged in the business of . . . selling or transferring obscene matter, who knowingly . . . possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce, shall be punished by imprisonment for not more than 5 years or by a fine under this title, or both.” Since the statute refers to a “book” or “magazine,” it’s obviously intended to encompass textual obscenity.

A few years ago, I wrote a law review article on criminalizing various types of speech, including obscenity. (If you want to read it, you can download it here, but it’s quite long.) While obscenity was a late arrival in American criminal law, the crime does seem to have been based on a concern with encouraging sexual activity at a time when many in our society were prudish.

Personally, I don’t see obscenity as a big issue today, but that’s obviously not true in the Western District of Pennsylvania. The Pennsylvania U.S. Attorney who brought the charges against Ms. Fletcher apparently did so because she truly believes the stories Ms. Fletcher wrote and posted online are likely to encourage someone to act out the awful things the stories describes. Unlike this U.S. Attorney, I don’t buy that argument. How can anyone buy that argument in a country in which movies and TV and games and books and other amusements depict all kinds of horrific violence?

While none of this material involves the horrible violence against children depicted in Ms. Fletcher’s stories, the same presumptive causal chain, the same monkey-see, monkey-do, rationale has to apply in both contexts. It seems to me that if this simplistic causal link between what we read and what we do exists, as some believe, we’d be a nation of homicidal maniacs. We’d all be acting out what we’ve seen in movies and on TV and read in books . . . but we aren’t.

I finished a law review article this summer that touches on some of these issues; in the course of writing it, I read about research that has been done on the connection between violent content we see (or read or play) and our acting in violent ways. The research seems to show that violent content increases aggressive thinking and some impulses, but it does not lead directly to our acting on what we’ve read or seen or done in a video game.

It seems there were lawyers who, like me, think Ms. Fletcher had a good First Amendment defense to the charges . . . but she couldn’t go that route. According to the Post-Gazette story I mentioned earlier, her agoraphobia would have made it impossible for her to leave her home to come to court and sit through what would have been a week-long trial. According to the same source, she was also terrified at the prospect of losing; her attorney said she might not have been able to handle going to jail.

So Ms. Fletcher pled guilty – quite understandably, it seems – and we will have to wait to see if obscenity charges can legitimately be predicated on the online dissemination of textual material.