X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Karen Fletcher, socially reclusive by her own admission, has been excused from several hearings in the obscenities case brought against her by U.S. Attorney Mary Beth Buchanan in Pittsburgh because she is uncomfortable with leaving her home in Donora, Pa. But her story � or stories � have become the topic of national media attention. The indictment against Fletcher was handed up by the grand jury in September 2006, but the case is just now being discussed nationally. She was charged, according to court documents, with six counts of violating obscenity laws for writing fictional stories on her Web site, RedRoseStories.com, about the kidnapping, rape and torture of children. Fletcher said in court documents in U.S. v. Fletcher that she wrote the stories for therapeutic value to help get over her own abuse she said she thinks she suffered as a child. One of the rules for her Web site, which her attorney said had about 20 members, was that no one was allowed to post pictures, according to court papers. U.S. District Judge for the Western District of Pennsylvania Joy Flowers Conti denied in September 2007 two defense motions to dismiss but is currently hearing arguments as to whether the government’s evidence was improperly collected, according to one of Fletcher’s attorneys, Lawrence G. Walters of Weston Garrou Walters & Mooney. The two motions to dismiss presented a strict scrutiny argument and said obscenity laws should not be applied to text where no pictures were involved. Walters said there hasn’t been a case that has applied obscenity laws to text since the U.S. Supreme Court refined the test for obscenity in its 1973 case Miller v. California. The three-pronged Miller test requires that an average person using contemporary community standards would find that the work only appeals to prurient interests, that it depicts sexual conduct as defined by state law and that it lacks “serious literary, artistic, political or scientific value,” according to court documents. Walters said Conti denied his motions to dismiss based on a 2005 ruling by the 3rd U.S. Circuit Court of Appeals in U. S. v. Extreme Associates Inc. The case was also brought by Buchanan, but involved a company that distributed videos. The 3rd Circuit said the district court was wrong in dismissing an indictment brought against the company on the grounds that it violated the privacy rights of Extreme Associates’ customers under the Fifth Amendment doctrine of substantive due process. “Because we conclude that the district court improperly set aside applicable Supreme Court precedent, which has repeatedly upheld federal statutes regulating the distribution of obscenity in the face of both First Amendment and substantive due process attacks, we will reverse the judgment of the district court,” Judge D. Brooks Smith said for the 3rd Circuit. Mark Rahdert, a law professor at Temple University’s Beasley School of Law, said it would be a mistake to think obscenity laws can’t be applied to text given that they originated out of cases involving text and later morphed into an area that was really only applied to videotape or photographic images. He said it is true, however, that there are few if any “text-only” cases since Miller that have been successfully prosecuted. Rahdert said it is difficult to argue that a work of “fantasy,” as Fletcher calls her stories, completely lacks any literary or artistic value. It is “exceedingly difficult” to sustain an obscenity claim when it relates to the written message, he said. The standard for “literary value is not very high,” he said. Because of that difficulty, prosecutions of alleged written obscenity has “fallen by the wayside,” Rahdert said. There is plenty of nonwritten material that could be prosecuted under obscenity laws, so most of the government’s resources have been spent in that area, he said. If prosecutors want to spend their resources on cases involving text, Rahdert said those questions are ultimately going to have to be decided by a jury. “I don’t see wisdom in devoting substantial prosecutorial resources on this,” Rahdert said in terms of the little he knew about the Fletcher case. Walters would tend to agree. He said the thing that surprised him more than the government actually filing the suit over text was that they chose Fletcher as the defendant. He said she wasn’t distributing her work to the masses given that there were about 20 members who paid to get on the site. The government, he said, seemed to “randomly” select six of the stories off of Fletcher’s Web site that it deemed obscene. Walters, who is representing Fletcher pro bono, said Fletcher would make a very sympathetic defendant to a jury. “What impact are they really going to make?” Walters questioned of the government’s prosecution of Fletcher. Amy Ginensky, a First Amendment attorney with Pepper Hamilton, said in an e-mail that under the “contemporary community standards” standard of the Miller test, it would be difficult in this day and age to show that Fletcher’s words were prurient. She said one might wonder why the government is prosecuting this case instead of focusing on “real issues.” “While child pornography prosecutions make sense, because there are victims involved, here there appears to be no victim at all,” Ginensky said. “While the government seems to link the decision to prosecute to the ‘fee’ paid by subscribers, the fee actually serves as a gateway between those who chose to read the words and those who might reach it by accident.” Stephen R. Kaufman of the U.S. Attorney’s Office in Pittsburgh is handling the case but was unavailable for comment. Assistant U.S. Attorney Gregory J. Nescott said he wasn’t as familiar with the case but the office wouldn’t be able to comment on ongoing matters. While there isn’t yet a trial date, Walters said he would expect the case to go to trial within the next couple of months. A mid-February hearing is scheduled before Conti to continue hearing evidence as to whether the government properly collected its evidence against Fletcher. He said there was concern that the government seized more material than the warrant allowed. If the judge rules his way, Walters said, “Ideally the government wouldn’t be able to show any stories” at trial, putting an end to the case. According to her affidavit, Fletcher was born in Michigan in 1951 and lived there until she moved to Pennsylvania in 1999. She said she left her home at the age of 14 and lived on the streets of Detroit and Pontiac, Mich. “I strongly believe that as a child I was both physically and sexually abused,” Fletcher said in the affidavit. “Sometimes memories will appear, but the details will quickly fade from my memory like the details of a dream upon awakening. Sometimes portions will remain and haunt me.” The stories were therapeutic for Fletcher, according to her affidavit. She created a chat room along with her Web site that she said became like a support group for herself and her members. According to Rahdert, arguing that the alleged obscenity was therapeutic gives a “pseudo-medical” veneer to the situation. Because that could be easily manufactured in any circumstance involving text that is allegedly obscene, Rahdert said a defendant would need evidence to validate the claim. Otherwise, the courts would be “driving a stake through obscenity law” and saying it can’t be prosecuted, he said.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.