An Obscene Prosecution
Only a prosecutor with nothing better to do would prosecute an obscenity case. Only a prosecutor who lacks an appreciation of the First Amendment would prosecute a writer for producing an obscene text -- no pictures, no graphics, just words. For those of you who thought that words were protected by the First Amendment, meet Mary Beth Buchanan, the crusading U.S. Attorney in Western Pennsylvania.
Buchanan is going after Karen Fletcher, "a 56-year-old recluse living on disability payments," on "six felony counts for operating a Web site called Red Rose, which featured detailed fictional accounts of the molesting, torture and sometimes gruesome murders of children under the age of 10, mostly girls." Disturbing, yes, but the Constitution protects speech that disturbs -- the only kind of speech that needs protection from censorship.
Fletcher maintains, with some credibility, that her website isn't meant to titillate.
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In an affidavit, Ms. Fletcher described herself as a victim of child sexual abuse and said that writing her stories helped alleviate her torment. Ms. Fletcher, who lives in Donora, Pa., in a ramshackle house, said she ran away from home at 14. She said she wanted her Web site 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.”
Buchanan takes the dubious position that the government wants pornography "producers to know that thse things are not tolerated" -- "these things" being things that Buchanan doesn't like. Extending her zealous prosecutions to works of pure fiction might deter other writers (although probably not, since most prosecutors have better things to do with their time), but only by doing violence to the First Amendment.
Prof. Laurence H. Tribe of Harvard Law School, a leading constitutional scholar, said that although the court had not ruled out the possibility that text alone might be obscene, “the idea that the written word alone can be prosecuted pushes to the limit the underlying rationale of the obscenity law.
Given the Supreme Court's protection of pornography involving computer-generated images of children, it's difficult to think that written descriptions of pornographic acts involving children, however offensive, can violate the First Amendment.
In any case, the defense makes the pointed and entertaining argument that Buchanan could just as easily be prosecuting Scooter Libby:
In their brief, the defense lawyers argued that the Fletcher stories, however lurid, were also comparable to many scenes found in literature and television. They cited the 1962 novel “A Clockwork Orange,” by Anthony Burgess, and episodes of the cartoon show “South Park.” They also cited a scene in a 1996 novel by I. Lewis Libby Jr., the former chief of staff to Vice President Dick Cheney, in which a 10-year-old girl is placed in a cage with a bear who forces himself upon her sexually to habituate her to sexual submission. The lawyers argued that Ms. Fletcher’s stories were no more lurid than the novel by Mr. Libby.
Of course, had Libby been prosecuted for obscenity, the president would have pardoned him.
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