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.


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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    Let's not forget Mary Beth Buchanan (none / 0) (#1)
    by scribe on Fri Sep 28, 2007 at 03:03:31 PM EST
    was one of the favorites of Ashcroft, Abu Gonzo, and Monica Goodling.

    IIRC, she was one of the people giving input into which US Attorneys were not loyal-enough Bushies....

    And, she has a bug up her, um,  fourth point of contact when it comes to "obscenity" cases.  A while back, she and the federal obscenity statute took a beating in a different obscenity case she pushed, but the Third Circuit overturned the District Court's decision that the obscenity statute was unconstitutional.

    Speaking of obscene (none / 0) (#2)
    by kovie on Fri Sep 28, 2007 at 03:06:49 PM EST
    This is off-topic--and my apologies for that--but I just came across a very disturbing story about administration plans to implement severe cuts in the FBI budget that will result in far fewer agents and resources devoted to criminal investigations and matters, and far more to--you guessed it--"counterterrorism" (read: Cheney's police state) efforts.

    Last updated September 27, 2007 9:51 p.m. PT
    FBI faces deep cuts in programs to fight crime
    Agents still being transferred to counterterrorism


    The Bush administration's 2008 budget cuts deeply into the FBI's crucial criminal program, further crippling the bureau's ability to tackle white-collar fraud, police abuse, civil rights violations and many other crimes, a Seattle P-I analysis has found.

    A larger budget battle is brewing between the White House and Congress, leading lawmakers to challenge the cuts to the FBI, which could take effect as soon as Monday, the start of the federal fiscal year.

    But the Democratic majority's spending plan -- under the ever-present threat of a presidential veto -- restores only a small fraction of the FBI agents needed to keep the criminal program at current levels.

    Through accounting sleight of hand, President Bush's plan concentrates the loss of thousands of unfilled staff positions across the FBI on its criminal program by transferring hundreds more agents to counterterrorism operations -- continuing a trend that started after 9/11.

    "This is gutting the criminal program. Incomprehensible. Just plain dumb," said one recently retired top FBI official who requested anonymity.

    Echoing the concerns of many within the bureau, as well as state and local law enforcement officials, the former official said the impact of the cuts will reverberate nationwide.

    "At a time when fraud is a huge undercurrent of the subprime mortgage crisis, this will completely wipe out the FBI's white-collar program," the source said. "The ability to investigate cases like Enron will be severely handicapped. And look at public corruption. Those are complex investigations that take about five agents to work one case."

    The White House and FBI Director Robert Mueller did not respond to requests for comment.

    Considering that so many white collar crimes these days have to do with Republicans, it's not a big mystery why they would want to do this.

    Someone might want to front-page this. It's pretty big IMO.

    The story could miss something. (none / 0) (#4)
    by 1980Ford on Fri Sep 28, 2007 at 05:26:52 PM EST
    Anti-terrorism laws have been used for national and "normal" crime and it is a good bet this means they will be more widely used, particularly in organized crime and gangs.

    So it could be just a different front in the "war on crime." Anyone know if the FBI has to be assigned to the terrorism force to use these laws against domestic crime?


    This specifically mentioned white collar crime (none / 0) (#8)
    by kovie on Sat Sep 29, 2007 at 04:05:49 AM EST
    Not gangs or organized crime. And for reasons that need no explanation, I think that most people here would agree that applying anti-terrorism resources and methods to white collar crime would be an extremely bad idea. E.g. do we REALLY want the newly-expanded FISA powers (not to mention the Patriot Act and MCA) to be applied to corporate criminals? I think not. Let's keep these domains separate, apart from sharing resources that span the entire FBI.

    Especially under Bush.


    she isn't related (none / 0) (#3)
    by cpinva on Fri Sep 28, 2007 at 04:01:56 PM EST
    to the bozo in kansas, who tried to prosecute "the tin drum" for child pornography, is she? his name escapes me at the moment, but he was the one who sent police to the home of the head of the kansas aclu, to recover a copy that he'd rented.

    i'm no fan of child pornography, but i was always under the impression that graphics (pictures, drawings, film, etc.) were required.

    i'm sure the citizens of PA are grateful to her, for making their minds safe from ms. fletcher's words.

    I doubt that they have a familial relationship (none / 0) (#5)
    by scribe on Fri Sep 28, 2007 at 05:45:12 PM EST
    but they are surely siblings at heart.

    they're soulmates (none / 0) (#12)
    by txpublicdefender on Sun Sep 30, 2007 at 11:08:14 AM EST
    I believe that was Bob Macy, crusading district attorney of Oklahoma City who would fight to the death to put innocent people on death row while still making sure he had enough time to prosecute film adaptations of award winning literature as kiddie porn.

    stories of child murder (none / 0) (#6)
    by diogenes on Fri Sep 28, 2007 at 06:43:38 PM EST
    Sex criminals who fantasize and/or stalk at times are engaged in rehearsal for the real thing.  It is outside my treatment field of expertise, but I suspect that sadistic child murderers rehearse in a similar way.
    The courts can decide if this is legal, but it should be obvious to anyone that such sadistic psychopaths react differently to this stuff than to an episode of South Park.
    What is the redeeming quality of this that people rush to defend it?

    stories (none / 0) (#7)
    by womanwarrior on Fri Sep 28, 2007 at 10:33:56 PM EST
    Am I out of date?  I thought that when Andrea Dworkin and Katharine McKinnon tried to outlaw pornography on the grounds that it inspired men to rape women, that it was given the laugh. Is there something new and reliable out there that I missed?

    The redeeming quality of what this woman writes is that it gives her catharsis for what she lived through.  She thinks it might help others.  Since only 29 other people get it, I hardly think that she is a crime wave waiting to happen, and I certainly don't see a need for the criminal injustice system to further brutalize her. She's disabled.  

    I really hate it when people are prosecuted because something they did offends a U.S. Attorney, but it is not clearly against the law.  

    But we must distract from the real problems, mustn't we?  Well, I believe that the federal defenders in Pittsburgh are a match for the U.S. Attorneys.  

    As for the article above about the shortage of FBI officers, they still have time to stalk defense witnesses, the sister of a client, and demand answers to questions when it is least expected.    I love the tactic of terrorizing witnesses.  I would be jailed for it.  

    Bad Friday.  Sorry for the rant.  


    catharsis and therapy (none / 0) (#9)
    by diogenes on Sat Sep 29, 2007 at 08:13:57 AM EST
    Most people I treat who use journaling as therapy or for catharsis keep the journal in their desk drawers as opposed to splashing it on the internet.  Or they use it in individual therapy (in group therapy such journals seem to retraumatize other victims in the group).  
    Simple pornography doesn't inspire rape because brutal rape is not involved.  Detailed accounts of eleborate kidnappings, captivity, rape, and murder could become part of someone's script.
    What again is the redeeming value of having this stuff on the web?  

    oddly enough, (none / 0) (#10)
    by cpinva on Sat Sep 29, 2007 at 08:58:12 AM EST
    the first amendment makes no mention of a "redeeming value" requirement, so your question is moot. it isn't up to the state to decide for the rest of us if someone's writings are worthy of publication, either in print or on the internet. it's called censorship.

    What is the redeeming value..... (none / 0) (#11)
    by kdog on Sat Sep 29, 2007 at 10:15:06 AM EST
    of the National Enquirer?

    I don't want some US attorney deciding what I can read, what paintings I can view, or what plays I can see.  That's China, not America.


    catharsis and therapy (none / 0) (#13)
    by Red Rose on Sat Jun 28, 2008 at 01:12:51 AM EST
    "Most people I treat who use journaling as therapy or for catharsis keep the journal in their desk drawers as opposed to splashing it on the internet.  Or they use it in individual therapy (in group therapy such journals seem to retraumatize other victims in the group)."  

    I quoted your post. You treat people for what, exactly?  

    "Detailed accounts of eleborate kidnappings, captivity, rape, and murder could become part of someone's script.  What again is the redeeming value of having this stuff on the web?"

    Why not?  It's on TV every night, in every law show on TV.  

    The redeeming value of this 'stuff' as you call it is simply that a person(s) have the RIGHT to be heard.  They have a RIGHT to free speech.

    YOUR right is to change the channel if you don't like the speech.