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Fletcher Obscenity Case a Slam Dunk?

Although she pleaded not guilty in her October 17 arraignment in U.S. District Court in Pittsburgh, Karen Fletcher faces a federal trial for obscenity. Prosecuting attorney Mary Beth Buchanan [pictured] is already calling Fletcher’s case a slam dunk.

Pittsburgh- Two-year-old “Mina” was kidnapped and sexually molested. “Katie,” 6, met the same fate but also was tortured.

Eight other children suffered in fictitious stories penned by Karen Fletcher, 54, of Donora, Washington County, who faces rare federal charges of transporting obscene matters over the Internet. It’s the first such case — text only, with no images — brought in decades, observers say, and the first ever in Western Pennsylvania.

The question to be decided in federal court in Pittsburgh: Is this material obscene?

U.S. Attorney Mary Beth Buchanan says it is. First Amendment advocates are howling that this is yet another example of the government trying to protect Americans from themselves.

“Doesn’t this smack as censorship?” asked Warner Mariani, the Downtown lawyer defending Fletcher. “It’s trying to limit what you think and write and distribute. What’s the next step? Do the feds start going into libraries and taking out books?”

Mariani, a member of the First Amendment Lawyers Association, said censorship chills free speech.

Buchanan counters that obscenity is not free speech.

“Obscene material is not protected by the First Amendment, and the law is clear on that,” Buchanan said. “This is extremely egregious and is as patently offensive as material possibly could be. I cannot imagine material more offensive than the material in the case of Karen Fletcher.”

Fletcher told FBI agents that she posted “sexually explicit stories about adults having sex with children” on a fantasy Web site, according to court papers. Excerpts of the stories were available for free, but subscribers paid $10 a month to access the complete stories.

The U.S. Supreme Court first addressed obscenity in 1957, and the court said obscene materials were not protected speech. The case involved the conviction of New York publisher Samuel Roth on federal charges of transmitting obscene matters through the U.S. mail. He was sentenced to three years in prison, which he served in Lewisburg, Union County. He was convicted in state courts in Pennsylvania and New York for selling James Joyce’s “Ulysses” as well as “Blank and Madonna” by Boccaccio and “Anecdota Americana.”

In the Roth case, the Supreme Court defined obscenity as anything the average person using community standards would find appeals to “prurient interests” and is “utterly without redeeming social importance.”

But that definition proved inadequate.

In 1964, Supreme Court Justice Potter Stewart found it difficult to define obscenity, but said, “I know it when I see it.”

“And later Stewart concluded he really didn’t know it when he sees it,” said Robert Corn-Revere, a First Amendment lawyer in Washington who used to serve as chief counsel to the Federal Communications Commission.

Courts now use the “Miller Test” to determine whether material is obscene. A benchmark 1973 Supreme Court ruling issued in the case of Miller v. California set new standards and attempted to clarify what is and isn’t legally obscene.

For Fletcher to be convicted, a jury would have to find:

* the average person, applying contemporary community standards, would find the work as a whole appeals to prurient interest;

* the descriptions of sexual conduct are patently offensive;

* the work as a whole lacks serious literary, artistic, political or scientific value.

Buchanan sees this case as a slam-dunk.

“I do not believe the citizens of Western Pennsylvania would find that this conduct is not obscene,” she said. “I think they will (find Fletcher guilty), or I wouldn’t have brought the case.”

A special Department of Justice prosecutor from Washington will assist in the case, as often happens in rarely prosecuted cases. Transmitting obscene matters was the lead charge in just 59 cases nationwide from 1995 to 2005, according to Department of Justice statistics.

Mariani said plenty of First Amendment lawyers across the country are lined up to help defend Fletcher.

“This isn’t Don Quixote going against a windmill,” Mariani said. “They can bring their muscle from D.C., but I’m going to bring mine, too. This is an important case.”

The issue isn’t defending the contents of Fletcher’s writings, but her right to write them, said Corn-Revere.

“It’s not a matter of defending the words or ideas. It’s a matter of defending that we live in a free society,” he said. “It’s defending her right to think in a different way.”

Atlanta lawyer and former prosecutor George M. Weaver, author of the “Handbook on Prosecution of Obscenity Cases,” called that argument a red herring.

“Any society serious about protecting itself must control some categories of explicit speech. You can’t just allow anything,” Weaver said. “If we’re going to wring our hands over prosecuting child pornography … then we’re showing a lack of courage when it comes to defending ourselves against things that are a definite threat to society.”

Mariani and others see this case eventually making its way to the Supreme Court — regardless of who wins in Pittsburgh.

“The loser isn’t going to go away,” Mariani said.

And that’s because of what’s riding on the outcome, Corn-Revere said.

“This is a difficult area, and this is a rare case that is testing the boundaries,” he said.

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