Mary Beth Buchanan
government's most aggressive
opponent of pornography.

Prosecution Testing the Definition of Obscenity

By NEIL A. LEWIS

PITTSBURGH - Sometime early next year, Karen Fletcher, a 56-year-old recluse living on disability payments, will go on trial in federal court here on obscenity charges for writings distributed on the Internet to about two dozen subscribers.

In an era when pornography has exploded on the Web almost beyond measure, Ms. Fletcher is one of only a handful of people to have been singled out for prosecution on obscenity charges by the Bush administration. She faces 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.

How Ms. Fletcher came to be selected for federal prosecution among the countless pornography purveyors is a vivid illustration of the fractured and uncertain state of the enforcement of obscenity law in the nation.

Most prosecutors are generally reluctant to bring obscenity cases, regarding them both as difficult and a diversion of resources better spent on other crimes. Moreover, the explosion of Internet pornography from sources around the world has convinced many law enforcement officials that it is all but impossible to have a significant impact on the issue.

The Fletcher case has been brought by Mary Beth Buchanan, the United States attorney for Western Pennsylvania, who is regarded by many people in the pornography industry and by outside analysts as the government's most aggressive opponent of the spread of pornography in the nation.

Ms. Buchanan, the 44-year-old daughter of a steelworker who went through law school as a single mother, is disdainful of prosecutors who have avoided taking on obscenity cases. Unlike her counterparts, she said in a recent interview, "I'm not afraid of the challenges, legal or otherwise, here."

What has attracted the attention of First Amendment scholars and lawyers is that Red Rose - which Ms. Fletcher says is an effort to help her deal with her own pain from child sexual abuse - was composed entirely of text without any images.

Although a narrowly divided Supreme Court said in 1973 that images were not necessary to label a work obscene, there has not been a successful obscenity prosecution in the country that did not involve drawings or photographs since then.

Courts have overturned or blocked convictions connected to other nonillustrated books, including the well-known "Fanny Hill: Memoirs of a Woman of Pleasure," on the basis that sexual images have a fundamentally different impact than words alone.

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." But Professor Tribe noted that even though the Fletcher case did not involve images, courts might view "patently offensive descriptions of sexual acts with children" as prosecutable under obscenity laws.

About the same time the Fletcher case goes to trial, Ms. Buchanan will be prosecuting a second obscenity trial in the same courthouse involving a large-scale producer of pornographic films called Extreme Associates, based in California. The company's films depicted women being gang-raped and defecated on.

In addition to those cases, Ms. Buchanan said in the interview that she had several more in the pipeline.

Todd Lochner, an assistant professor at Lewis & Clark College in Portland, Ore., who has written about prosecutorial decision-making in obscenity cases, said that Ms. Buchanan had established herself as the nation's foremost obscenity prosecutor. "I can't think of anybody who is as aggressive as she is," Professor Lochner said.

Ms. Buchanan said she selected cases that she hoped would have deterrent effects on other pornographers.

"We want producers to know that these things are not tolerated," she said. Ms. Buchanan said that the rarity of obscenity prosecutions during the eight years of the Clinton administration meant that the pornography industry had come to believe that law enforcement had tacitly "agreed to an anything-goes approach."

excerpted from:
"A Prosecution Tests the Definition of Obscenity"
By NEIL A. LEWIS
© New York Times September 28, 2007