Right to Write

Karen Fletcher, of Donora, Pennsylvania, then 54, set-up a website called The Red Rose Stories. com in 2006 and posted a number of fictional stories describing sexual abuse of children in graphic terms. Readers were required to pay $10 per month, and she had garnered nearly 30 subscribers when she was arrested and charged with violating Section 1462(a) of Title 18 of the US Code, which bans publishing obscenity. Her computer was confiscated, and the website taken down. Facing the prospect of years in prison, Miss Fletcher plead guilty in August, 2008, as part of a plea-bargain.

Since the website no longer exists, I cannot provide any direct quotes from Red Rose Stories. But one of them, entitled "M&M" is a about a 5-year old slave girl who is tortured and raped; that should give you a taste of what Miss Fletcher was peddling. I would stipulate that the story was explicit, gruesome, and prurient. I would also stipulate that most, if not all, of the subscribers to the website were perverts who have a violent sexual interest in children.

I consider those who use children to create pornography or otherwise abuse them are vicious criminals who deserve severe punishment. But note that Red Rose Stories were pure fiction. No real children were harmed in the writing or posting of these stories, any more than any real horse was harmed in the writing and publication of The Godfather! There were no photos, not even drawings, in the Red Rose Stories; Karen Fletcher is being punished for nothing more than entering words from a computer onto the Internet.

The First Amendment to the Constitution provides that " Congress shall make no law abridging the freedom of speech, or of the press..." Does that protect the right to publish obscene material?

The US Supreme Court ruled 5-4 in Miller vs California (aka Miller vs US) (1) that the First Amendment does not protect some material that "appeals to prurient interest" and "lacks ...value". (2) Defendant Miller had been convicted of mailing unsolicited photos of sexual activity to some California residents who reported it to state authorities; Miller appealed his conviction all the way to the US Supreme Court.

Justices Hugo Black and William O Douglas dissented, pointing to the clear and unambiguous language of the Amendment ("no law"), which contained no exceptions of any kind. The US Attorney in the Fletcher case cited the Miller ruling in the plea-bargain agreement.

If one holds that the Second Amendment grants an absolute right to keep and bear arms, then one should also hold that First Amendment grants an absolute to write and publish anything, no matter how vile. Those Americans who embrace the "original intent" of the framers of the Constitution and Bill of Rights would find that the framers of the First Amendment had no intention of allowing any form of federal censorship of writings. Although one could argue that photography and the Internet did not exist when these documents were drafted and ratified, written pornography long pre-dated the US Constitution; the First Amendment could easily have included an exception for "indecent" or "obscene" writings, just as other amendments contain exceptions. (3)

On this issue I prefer the intellectual company of Justices Black and Douglas over that of the majority of Court in the Miller decision. The obscenity standard in Miller is just as much "judge made law" as the convoluted trimester regime in Roe v Wade. But even those who support the Miller ruling should note two important differences between Miller and Fletcher: Fletcher's material contained no photos at all, and Fletcher sent her materials only to those who had ordered and paid for it. Both differences indicate that Fletcher should not have been prosecuted.

The Fletcher prosecution is an unfortunate example of the tendency of our federal "nanny-state" to intrude as much as possible into the otherwise private and personal affairs of ordinary Americans. Not only can the federal government censor the Internet, it can now find out what books you borrowed from your local library!

You may argue that fiction such as the Red Rose Stories should be banned because readers may be inspired to commit the crimes depicted in them. I, for one, do not want to go there: much of literature and entertainment is about crime, especially murder (like Macbeth, Hamlet, Julius Caesar, etc.). A popular TV show (Law and Order-SVU) often deals with molestation of children. I do not know if criminals really do get some ideas about crimes to commit from books, TV or the Internet, but I would consider it a preposterous invasion of our freedom to ban all depictions of crime because someone might actually commit one.

I would prefer to live in a society so free that everyone could write and publish whatever they wanted to, rather than one in which the government reserved the right to ban obscenity. Lee Greenwood once wrote, " I am proud to be an American, where at least I know I'm free!" (4) Mr. Greenwood, meet Miss Fletcher.
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(1) 413 US 15, 24 (1973).

(2) The ruling affirmed Roth v US , 354 US 476 (1957), which upheld another anti-obscenity law. Some of the language in Miller cited Roth.

(3) For example the Fifth Amendment states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces...."

(4) God Bless the USA!