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A Plea Is Entered in an Obscenity Prosecution Against a Sexual Abuse Victim Who Posted Her Writings About Abuse on the Internet: Should the Federal Government Be Prosecuting Words As Obscenity?


Monday, Aug. 18, 2008

Earlier this month, in Pittsburgh, U.S. District Judge Joy Flowers Conti sentenced a woman who says she is a sexual abuse survivor, Karen Fletcher, to home confinement for violating the federal obscenity laws. Fletcher’s alleged offense was maintaining a website on which she posted explicit stories about child abuse – stories she said were based upon her own abuse, and that served as a form of therapy for her. The site had 29 subscribers, each of whom paid a $10 subscription fee.

In this column, I’ll explain why I believe the First Amendment protected Fletcher’s conduct, and why I believe that the government has now chosen to turn, after a longstanding practice of non-prosecution, to prosecuting written material such as Fletcher’s.

This prosecution is especially surprising because prosecutions based on writing, as opposed to images, are virtually unheard of today. Indeed, even Vladimir Nabokov’s novel Lolita – which concerns a man in his late thirties having a prolonged sexual relationship with a twelve-year-old girl, whom he abducts after her mother dies– caused concern, but no legal action, when it was published here in the U.S. in 1958.

Since then, too, federal obscenity prosecutors have generally stayed away from obscenity prosecutions against books (or, today, text-containing websites) and have focused on films and, at times, magazines instead. Accordingly, while federal judges still do watch pornographic movies in their chambers to ascertain if they violate the criminal laws of obscenity, they don’t pore over novels or memoirs there.

What changed? Why did federal prosecutors break precedent to go after Fletcher? I think the answer is twofold.

Taking Advantage of Society’s Rightfully Strong Feelings About Child Abuse to Violate Valuable, Longstanding Legal Principles

First, part of the answer lies in the current climate surrounding child pornography. Emotions about child pornography run high – and very understandably so, since that material is predicated on rape and abuse. And high emotions lead to the neglect of longstanding legal rules – including those embodied by the First Amendment and its jurisprudence. The emotion excoriating child rape and abuse is laudable; the use of it as an excuse for injustice is not.

For instance, no one seems to care about entrapment, if a child predator is entrapped; to the contrary, it is applauded. Indeed, the very word “predator” connotes a lawless, animalistic world ruled by violence, where the law is ineffective or beside the point.

Similarly, the movie “Hard Candy” -- the fictional story of a young girl who tortures a man she believes is a predator – resolves its moral conundrum (spoiler alert) with the revelation that not only was the man guilty all along, but the girl knew it all along. Her vigilantism, troubling throughout the movie, is vindicated in the end – as an edgy, interesting movie is transformed into a morally simpler story.

The Supreme Court’s recent rulings have, to some extent, also reflected society’s increasingly aggressive views regarding the sexual abuse of children. In Kennedy v. Louisiana, the Court split, 5-4, on whether child rape should be punished by the death penalty (though a majority said no). It seems likely that death penalty advocates thought that the strong emotions that child rape arouses in all of us – including the Justices -- would serve as the best wedge to use to expand the application of the death penalty. Surely, they needed a wedge, for today, in an era of frequent DNA-based exonerations, the case for the death penalty is weaker than ever.

In a similar vein, the Court, in United States v. Williams, upheld a federal law that targeted not only sales of actual child pornography, but also sales of First-Amendment-protected virtual child pornography (that is, pornography created via computer graphics, without the use of images of actual children) that the purveyor wrongly believed was real. (I discussed Williams at greater length in a two-part series of columns.)

Perhaps sensing the turning tide in this area, and its dangers, Justice David Souter (joined by Justice Ruth Bader Ginsburg) dissented. Souter pointed out that, “[]f the Act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear. True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression.”

Souter is right: The First Amendment counsels that to be free, we must protect even speech we despise. It’s hard to think of a better test for that principle – enshrined in Supreme Court precedent – than the case of speech that does not perpetrate, but to some may seem to advocate or inspire, child abuse. Image-based virtual child pornography falls into that category; so do textual accounts of child abuse such as Fletcher’s.

Prosecuting on an Advocacy Theory, Even When Advocacy Cannot Be Proven

In sum, the first reason I believe that the prosecution against Fletcher was brought is the increasing sense that legal rules (or, in this case, longstanding practices) are made to be broken where child pornography is at issue. The second reason I believe Fletcher was targeted is that she made her site a pay site, and that it had subscribers.

Opting to make the site a pay site made it more closely resemble a porn site – though, of course, writers will have far less time to write if they can’t make a living at it, and ad-supported blogs are becoming more and more common. Indeed, many blog authors’ hope is to support themselves by blogging full-time, through a combination of ad support and possible book publication. Thus, Fletcher’s decision to seek revenue from her writing is not unusual.

Then there is the matter of the 29 subscribers. Were those subscribers themselves abuse survivors, as Fletcher says she is, who found a therapeutic mirror of their own suffering in the stories? Or were they sexual predators who enjoyed the stories of abuse, and even fantasized about acting on them?

Plainly, the judge in the case was concerned with the latter possibility. Indeed, the Wall Street Journal’s Law Blog reported that, at sentencing, Judge Conti remarked that she would have imposed a sentence of imprisonment had the government not recommended home confinement in light of the plea. According to the Law Blog, Conti told Fletcher, “If anyone would have read the story and acted upon it, a little child could have suffered devastation that you would have had to live with for the rest of your life.”

The judge’s remark clashes directly with the Supreme Court’s First Amendment jurisprudence – which requires a very demanding showing if speech is to be censored on the ground that it advocates unlawful conduct. Here, it is very doubtful that that showing could have been made, for several reasons.

First, the advocacy test requires imminence: The paradigm case satisfying the test postulates a speaker inciting an audience to riot, and holds that, despite the First Amendment, the police can silence him to keep the peace. Stephen King notes in his book Danse Macabre that crimes have been committed that seemed inspired by his novels. This fact may keep him up at night, but no one has proposed prosecuting King, nor could they.

Second, the advocacy test must turn in part on the speaker’s intent, and Fletcher claimed that her intent was not to advocate child abuse, but to provide comfort for herself and others who had suffered it. She is not responsible for choosing or limiting her readers, any more than King is.

Yet a comment by prosecutor Stephen Kaufman, as reported by the WSJ Law Blog, suggests that she is being punished for their transgressions: “The individuals willing to pay money to subscribe to this Web site clearly have a very strong sexual interest in children — not just a sexual interest, but a violent sexual interest.”

The comment may or may not be true; it’s possible that survivors like Fletcher herself might subscribe as well. What’s undeniably true, though, is that – except in very extreme instances involving, for instance, manuals for building bombs – a writer cannot be criminally punished based on the fear that readers will mimic the actions she describes.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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