Child-torture stories: protected by 1st amendment?
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Pa. woman charged with obscenity for online child-torture stories
By The Associated Press
PITTSBURGH — A woman accused of running a Web site that published graphic fictional stories about the torture and sexual abuse of children was indicted by a federal grand jury on obscenity charges.
Karen Fletcher, 54, of Donora, was indicted Sept. 26, and the charges were announced yesterday by U.S. Attorney Mary Beth Buchanan.
"Use of the Internet to distribute obscene stories like these not only violates federal law, but also emboldens sex offenders who would target children," Buchanan said.
Buchanan is an outspoken proponent of prosecuting Internet obscenity. In 2003, she brought charges against two people who run a company that distributes videos simulating rape and murder.
Fletcher's site contained excerpts of stories about child sex, torture and murder that were available to all visitors, prosecutors said. Users could pay a fee to read whole stories, such as one that described the torture and sexual molestation of a 2-year-old, prosecutors said.
Fletcher was charged with one count for each of six stories that involved the kidnapping, torture, sexual molestation and murder of children 9 years and younger.
Fletcher, reached at home yesterday, said federal authorities "didn't like my site." She said she was not aware of the indictment and otherwise declined to comment.
"I am not going to say a word. You have a wonderful day," Fletcher said.
Fletcher described her site as a "fantasy site" and told authorities that she posts explicit stories about adults having sex with children, the FBI said in a search warrant affidavit unsealed yesterday. She told the FBI that about 29 people paid a $10 monthly membership fee to access the stories, the affidavit said.
Fletcher told agents when they seized her computer in August 2005 that she wrote the majority of the stories using the pen name "Red Rose," according to the affidavit. About 40 others contribute stories to the site, the FBI said.
The charges carry a statutory maximum of 30 years in prison and a $1.5 million fine, but the actual sentence she would face if convicted would be driven by federal sentencing guidelines.
Although Fletcher's site offers written works instead of videos, the case is similar to the one Buchanan filed against Extreme Associates, a California company that distributes videos simulating rape and murder.
In that case, Buchanan argued that pornographers must adhere to the community standards of where products are made and anywhere they might be seen.
A U.S. District judge threw out the charges against Extreme Associates, ruling that prosecutors overstepped their bounds in trying to block the material from children and from adults who didn't want to see such material inadvertently. Customers ordering from the site used a private, members-only section. Buchanan appealed the ruling to the 3rd U.S. Circuit Court of Appeals. That court has agreed to hear the appeal but a trial date has not been set.
Edited to add:
The 1st amendment doesn't say free speech except for stuff which may appeal to really icky people or things which may be deemed sick. If it did, then authors like Poppy Z Brite (personally I can't stand her stuff but she has every right to create it) would be in prison.
People write about serial* killers all the time. What is the difference? No one is arresting those folks saying this stuff appeals to killers and will encourage them to hurt people. Why doesn't anyone say that... because it isn't true.
* I always want to write CEREAL… as though I’m talking about some guy who beat Captain Crunch to death with a belaying pin.
Just because you don't like it doesn't mean it is against the law to say it.
Since full access to the site is available on a paid basis only, I'd say that this falls under the precident of the dial-a-porn ruling: by requiring a credit card number, the site is doing enough to reasonably prevent access by minors, and if some minors manage to access it anyway, that is irrelevant because more stringent measures would interfere with adult access.
She is essentially being charged with distributing pornographic material. (Which I believed was once described as "I know it when I see it.") I didn't see anything with her being charged with child abuse.
Secondly, let's say there were actually pedophiles looking at her site. Why charge HER? Why not use her site to get more information about the people purchasing her services?
And where does Lolita fall in all of this?
The reason photographic material is NOT protected is that a real child had to be photographed that way, i.e. harmed, so that supersedes the First Amendment rights.
Now that things can be created entirely by computer, that may change that ball game. In fact, I believe I was just reading an article about digital forensics. People accused of creating illegal child porn (i.e. with images) try to get this guy to be expert witness to say that their images were created digitally. But usually the expert witness said those people were lying.
Ahh, here it is. This article was published only yesterday in the NY Times. Great timing!
Ah, but people consider that to be "art." Of course, such subjective standards cannot be applied to the law as in what is art and what is just porn. "I knows it when I sees it" is as impotent now as it ever was.
"I know it when I see it" was also not from the majority opinion in that decision, and therefore is not law. Consulting the book Libraries, The First Ammendment, and Cyberspace (touchstone not working but it's by Robert S. Peck and published by the American Library Association), I see that Justice Potter Stewart wrote that in a concurring opinion, speculating on how difficult it is to define obscenity. The definition adopted in 1973, and the legal standard today, is that a court must rule that:
1. "the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest;
2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Yes, this means that something can be obscene in Georgia that isn't obscene in New York, but that was the intent in making community standards part of the first rule.
The major issue in ruling whether or not the work qualifies as obscene- and not all pornography does qualify as legally obscene, since it may not meet the "patently offensive" requirement- would be deciding what community standards should be applied online. And even if it were offensive to local standards, if it were ruled to have some level of literary merit- e.g., Lolita- it still wouldn't be obscene, because all three qualifications would need to be met.
This case is part of one US Atty's aggressive approach to furthering obscenity caselaw, and she is part and parcel of the DOJ's push under the Bush administration to push obscenity prosecutions. For my money it hasn't improved society one whit, and it has wasted an awful lot of taxpayer dollars.
This NYT article on the non-broadcast of "Howl" is a case in point of the benefits that "obscenity prosecutions" have brought us.
Those reading this thread might appreciate the Eric Idle's "FCC Song" (he's made an mp3 available for download) and the fccfu.com song (available both in choral and heavy metal versions).
The 1st amendment doesn't say free speech except for stuff which may appeal to really icky people or things which may be deemed sick. -Inkdrinker
Just because you don't like it doesn't mean it is against the law to say it. -Angelikat
Kudos to both!
I don't see much action against that.
Still,don't ask me to read anything she's written.
Afraid of public trial, author to plead guilty in online obscenity case
Saturday, May 17, 2008
By Paula Reed Ward, Pittsburgh Post-Gazette
She battled the federal government's allegations for more than a year and a half, but in the end, Karen Fletcher's mental health will win out over her principles. And First Amendment lawyers will lose a key chance to have a court determine whether text-only material can be considered obscene.
Ms. Fletcher has decided to plead guilty to six counts of distributing obscenity online stemming from fictional stories published on a members-only Web site.
First Amendment lawyers thought an acquittal in the case could have begun a trend -- proving that text-only cases do not rise to the level of obscenity standards.
The Donora woman was charged in September 2006 based on her "Red Rose" Web site, where Ms. Fletcher, 56, and others posted fictional stories that depicted the rape and torture of children -- including infants.
She and her high-profile First Amendment lawyers claimed that what she'd written was not obscene, and they hoped to prevail before a jury.
In their favor, they thought, was the fact that the federal government has never won a conviction based solely on text under current obscenity law.
But Ms. Fletcher, who has agoraphobia -- a fear of public places -- is not capable of sitting through what likely would be a weeklong trial, said one of her attorneys, Lawrence Walters.
"With a different client, with somebody who had the strength to fight, there might have been a different outcome," Mr. Walters said. "While we'd like her to be a standard-bearer on First Amendment issues, this is not the person to endure a trial.
"Even worse, should she be convicted, I don't know that she'd be able to withstand a jail sentence."
Instead of taking the risk, Ms. Fletcher is scheduled to plead guilty on Aug. 8 before U.S. District Judge Joy Flowers Conti.
Under the proposed plea agreement, Ms. Fletcher would avoid prison and be sentenced to a term of home detention.
"Our first obligation is always to our client, even though it may not be in the best interest of constitutional rights, in general," Mr. Walters said.
Throughout the duration of her case, Ms. Fletcher has appeared in court on the charges only once, though there have been a number of hearings.
In an affidavit, Ms. Fletcher wrote that she has almost no memory of her childhood up until the age of 14.
She explained that her writing started out just for her and was cathartic because she had been sexually abused as a child.
"At first I would capture a particular feeling of dread and try to weave it into a scenario that explained the feeling," she wrote.
She went on to say that she didn't know if the stories were based on her experiences or if they were completely fictitious.
Later in the affidavit, Ms. Fletcher described what she called her "monsters."
"I have always been afraid of monsters. The monsters in my life had always been real; for too long they were always there with unlimited access to me, and I was helpless to do anything about it," she wrote. "In my stories, I have created new monsters. They rise above the horror of the real life monsters. Somehow, making these monsters so much worse makes me feel better, and makes my life seem more bearable.
"I may still be afraid of the monsters, but at least in the stories, they prey on someone else, not me."
Throughout the case, Ms. Fletcher defended herself by noting that she required a $10 monthly membership fee to prevent minors from viewing the site, and that she carefully monitored it to prevent the posting of any pictures.
Reed Lee, a First Amendment attorney who has successfully defended a number of obscenity cases, said he believed Ms. Fletcher had a viable defense.
In today's society, he said, it's more difficult to find something that patently offends "contemporary community standards," which is required under obscenity law.
"I don't think many people think the standards are getting stricter. With text, you can always stop reading," Mr. Lee said. "You're less likely to be offended than if an image is just splashed at you."
The other requirements of the so-called "Miller test," set by the U.S. Supreme Court in 1973, include that the material appeals only to "prurient interests," and that it has no serious artistic, literary, social or political value.
"Even if we don't think there's political value in it, there's tremendous social value in breaking that spiral between silence and shame," Mr. Lee said, referring to people who realize there might be others in the world who share interests that some consider outside the norm.
Ms. Fletcher's guilty plea will not set any precedent related to text-only obscenity prosecutions, Mr. Lee said, because she is entering the plea voluntarily.
U.S. Attorney Mary Beth Buchanan, who would not comment for this story, has said in the past that Ms. Fletcher's stories were "disturbing, disgusting and vile."
She brought the prosecution, in part, because material like Ms. Fletcher's could embolden a person to commit sex crimes on children.
Ms. Buchanan confirmed there are other obscenity cases currently being investigated by her office, though she wouldn't specify if they are related to words or images.
Another textual case is pending in federal court in Albany, Ga., and there are a number of others involving imagery and movies being prosecuted by the federal government around the country.
One in Tampa is scheduled to go to trial May 27. In Pittsburgh, an obscenity case against Extreme Associates, a California company that makes graphic pornography depicting the rape and murder of women, is in limbo.
Though the case was filed in August 2003, it has still not been scheduled for trial. There have been no docket entries in the case since Aug. 17 of last year
And they say there's a overcrowding problem. I don't sympathise.
Actually, people do say it all the time (though I'm not aware anyone has actually been arrested yet). There have been a number of accusations, often from the judiciary, when cases come up in which the perp has been reading a book that - by the wildest stretches of the imagination - could be seen to touch on their crimes. These people haven't, of course, taken the trouble to study the many thousands of people who committed crimes while reading perfectly innocuous material (though I'd have to have a certain amount fo sympathy for anyone who went out and killed someone after reading The Shack but then, that's just my personal prejudice). Of course, just because they say it, that doesn't make it true.
Sorry if someone else has already said this - I did rather skim.
That being said, it's an obvious violation of her rights to take legal action against her. It could, perhaps, warrant an inquiry into any possible "reality" to the stories, but the stories themselves are protected. No question about it.
It also means that you or I can write our own books about cruelty and torture of the kind of person who would torture either children or animals, don't forget.