Art or Obscenity? Unusual Case Draws Controversy

Feb. 1, 2008— -- For about the last eight years, Karen Fletcher has rarely left her run-down house outside Pittsburgh, she says. Described by her lawyers as timid and reclusive, Fletcher recently began posting short stories on the Internet that describe, in graphic detail, the sexual abuse and torture of young children – in order, she says, to cope with her own history of abuse.

But amid the ubiquitous pornography available on the Internet, those stories, read by about 29 paying subscribers, have made Fletcher one of the few people facing federal criminal charges for obscenity.

Once relatively common, federal obscenity cases in the last 15 years have become something of a rarity, law professors and former prosecutors say. Though child pornography prosecutions are increasing, adult obscenity laws are unevenly enforced across the country, taking a back seat to high-profile areas like terrorism cases and drug enforcement.

"A straight adult obscenity case is fairly far down in the pecking order" of priorities for prosecutors, said Teree Bowers, who was the U.S. Attorney in Los Angeles from 1992 to 1994.

Fletcher's case has generated even more attention because, unlike the vast majority of material thought to be obscene, Fletcher's stories have no accompanying photographs or images. In the 35 years since the Supreme Court's seminal case defining obscenity, it appears that not a single successful federal obscenity prosecution has been based solely on the written word.

"We haven't seen anything like that since the '60's," said Tim Wu, a Columbia University law professor who has written about obscenity law. He called Fletcher's case "astonishing."

Under the Supreme Court's 1973 decision in Miller v. California, pornography can be prosecuted as obscene if, taken as a whole, it lacks artistic, literary or scientific merit; depicts certain sexual conduct in an offensive way; and is prurient as measured by contemporary community standards. In a separate case decided that year, the court held that written descriptions alone, without pictures, can be obscene.