Legal News

Obscenity Prosecution: Do You Know it When You Read it?

By Peter Lattman

A woman in Pennsylvania is being prosecuted under the federal obscenity laws for posting graphic short stories on the Internet — with no pictures — that detail the sexual abuse and torture of young children. The woman, who says her writing helped her deal with her own sexual abuse as a child, had 29 subscribers before her site was shut down by the feds. She’s been charged her with crimes for which she could serve 30 years in prison. Here’s the ABC News story.

Some find her prosecution draconian. “We haven’t seen anything like that since the ’60’s,” said Columbia Law professor Tim Wu, describing Fletcher’s case to ABC News as “astonishing.”

While child pornography cases have been made a priority of the Bush DOJ, adult obscenity cases have been rare. Rarer still: Ones with no photos or images. Under Miller v. California, pornography can be prosecuted as obscene if, taken as a whole, it lacks artistic, literary or scientific merit; depicts certain sexual conduct in an offensive way; and is prurient as measured by contemporary community standards. According to ABC, in the three-plus decade since the case, not a single successful federal obscenity prosecution has been based solely on the written word, though the court has decided that written descriptions alone can be obscene.

“The U.S. Attorney’s office and I felt that the stories involved here are extremely graphic, depicting the torture and rape of children, and thought they were worthy of prosecution,” said Stephen Kaufman, the federal prosecutor in Pittsburgh prosecuting the case. He pointed out that AG Ashcroft had made obscenity prosecutions a priority, and so has his boss, Mary Beth Buchanan.

ABC says her case will likely focus on whether her writings have literary or scientific merit. She’s represented by noted First Amendment lawyer Jerome Mooney, who will cites in legal papers everything from South Park ot Norman Mailer for the proposition that sexually explicit material can be socially acceptable.

Full post as published by Law Blog - WSJ.com on February 01, 2008 (boomark / email).