IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff, v. KAREN FLETCHER, Defendant.

) ) ) ) ) ) ) ) )

Criminal No.: 2:06-cr-00329-JFC

_______________________________________ DEFENDANT FLETCHERS MEMORANDUM IN SUPPORT OF MOTION TO DECLARE OBSCENITY STATUTE UNCONSTITUTIONAL AS APPLIED TO TEXT OR, IN THE ALTERNATIVE, TO DISMISS INDICTMENT FOR FAILURE TO ALLEGE A CRIME

WARNER MARIANI Pennsylvania Bar No.: 61968 428 Forbes Avenue, Suite 220 Pittsburgh, Pennsylvania 15219 Telephone: (412) 281-3360 and LAWRENCE G. WALTERS Florida Bar No.: 776529 Admitted Pro Hac Vice JEROME H. MOONEY Utah Bar No.: 2303 Admitted Pro Hac Vice DEREK B. BRETT Admitted Pro Hac Vice Florida Bar No.: 0090750 Weston, Garrou, DeWitt & Walters 781 Douglas Avenue

Altamonte Springs, Florida 32714 Telephone: (407) 975-9150 Attorney@FirstAmendment.co m Counsel for Defendant FLETCHER

I.

TABLE OF AUTHORITIES

FEDERAL CASES Supreme Court

A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964) ..17 Ashcroft v. American Civil Liberties Union (COPA I), 535 U.S. 564 (2002) ..13, 30, 41, 43-46, 56, 76 Ashcroft v. American Civil Liberties Union, 540 U.S. 944 (2003) ..30 Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) ....30, 45 Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) ..79 Brandenburg v. Ohio, 395 U.S. 444 (1969) 25, 35 Bridges v. California, 314 U.S. 252 (1941) ..35 Central Hudson Gas & Electric Corp. v. Public Service Commn of New York, 447 U.S. 557 (1980) 34-35 Chaplinsky v. New Hampshire, 315 U.S. 568 (1941) .21, 24, 35 Cohen v. California, 403 U.S. 15 (1971) 35 Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ..15 Elrod v. Burns, 427 U.S. 347 (1976) ..16

F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) ..77 Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) ..16-17 Free Speech Coalition v. Ashcroft, 535 U.S. 234 (2002) 27, 34, 38, 57 Freedman v. Maryland, 380 U.S. 51 (1965) ..29, 49 FW/PBS v. City of Dallas, 493 U.S. 215 (1990) ..17 Gitlow v. New York, 268 U.S. 652 (1925) 18, 35 Grove Press, Inc. v. Gerstein, 378 U.S. 577 (1964) ..16 Hamling v. United States, 418 U.S. 87 (1974) 53 Heller v. New York, 413 U.S. 483 (1973) ..17 Jacobellis v. Ohio, 378 U.S. 184 (1964) ..24 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ..29 Kaplan v. California, 413 U.S. 115 (1973) ..12, 29, 31 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ..17 Marcus v. Search Warrant, 367 U.S. 717 (1961)...17 Maryland v. Macon, 472 U.S. 463 (1985) ..17

Memoirs v. Massachusetts, 383 U.S. 413 (1966) ..24 Miller v. California, 413 U.S. 15 (1973) .....passim National Socialist Party v. City of Skokie, 434 U.S. 1327 (1977) 25 New York v. Ferber, 458 U.S. 747 (1982) ..24, 33-34 New York Times v. Sullivan, 376 U.S. 254 (1964) ..15 Pope v. Illinois, 481 U.S. 497 (1987) ..24 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ..25 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ....18, 43, 48, 76 Roaden v. Kentucky, 413 U.S. 496 (1973) ..15, 17, 49 Roth v. United States, 354 U.S. 476 (1957) 24, 32, 35, 37, 47, 80 Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) ..15, 17 Southeast Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ....12, 30 Texas v. Johnson, 491 U.S. 397 (1989) 25, 49 United States v. 12 200-Ft. Reels of Super 8 MM Film, 413 U.S. 123 (1973) .25 United States v. Carolene Products, 304 U.S. 144 (1938) .25

United States v. Gravel, 408 U.S. 606 (1972) ..37 United States v. OBrien, 391 U.S. 367 (1968) ..37 Watts v. United States, 394 U.S. 705 (1969) ..40 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) .78 Whitney v. California, 274 U.S. 357 (1927) ....79-80

Courts of Appeals
American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003) ..30, 35, 44-46, 48 American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000) 30, 35, 43, 46 Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) 15 Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) ...12, 30-31 United States v. A Motion Picture Film Entitled I Am Curious Yellow, 404 F.2d 196 (2d Cir. 1968) ..30 United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997) .39-41 United States v. Carlin Comm., Inc., 815 F.2d 1367 (10th Cir. 1987) 50 United States v. Williams, 444 F.3d 1286 (11th Cir. 2006) ..27, 37-38, 56-57 Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966) ..15

District Courts
American Civil Liberties Union v. Ashcroft, 31 F.Supp.2d 473 (E.D. Pa. 1999) ..41, 43 American Civil Liberties Union v. Gonzales, __F.Supp.2d ___ , 2007 WL 861120 (E.D. Pa. 2007) 13, 45 Gonzales v. Extreme Associates, Inc., (Case No.: 03-203, W.D. Pa.) ...47 United States v. Bennett, 24 F.Cas. 1093 (C.C.S.D.N.Y. 1879) ...22 United States v. Gulf Oil Corp., 408 F.Supp. 450 (W.D. Pa. 1975) ...14-15 United States v. Head, 317 F.Supp. 1138 (W.D. La. 1970) ...14 United States v. Kennerley, 209 F. 119 (S.D.N.Y. 1913) ..22 United States v. Pryba, 678 F.Supp. 1225 (E.D. Va. 1988) ..33,34

State Cases
Cinncinati v. Contemporary Arts Center, 57 Ohio Misc. 2d 9, 566 N.E.2d 207 (Hamilton Cty. Mun. Ct. 1990) .12 City of Chicago v. Hanson, 435 N.E.2d 120 (Ill. 1st Dist. 1981) 56 Commonwealth v. Feigenbaum, 70 A.2d 389 (Pa. Super. Ct. 1950) 36 Commonwealth v. Gordon, 66 Pa. D. & C. 101 (1949) 36 Landau v. Fording, 54 Cal.Rptr. 177 (Cal. Ct. App. 1966), affd, 388 U.S. 456 (1967) ..30

Skywalker Records, Inc. v. Navarro, 739 F.Supp. 578 (S.D. Fla. 1990), rev. other grounds, Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) .30 State of Minnesota v. Botsford, 630 N.W.2d 11 (Minn. Ct. App. 2001), review denied, (Sept. 11, 2001) 56

Constitutional Provisions
United States Constitution: First Amendment ...passim

Federal Statutes
18 U.S.C. 1461 ...48 18 U.S.C. 1462 (a) & 2 ...passim 18 U.S.C. 1751 ...37 18 U.S.C. 2241 ...29 18 U.S.C. 2242 ...29 18 U.S.C. 2243 ...29 18 U.S.C. 2244 ...29 18 U.S.C. 2245 ...29 18 U.S.C. 2251 ...29 18 U.S.C. 2252A(a)(3)(B) .38 18 U.S.C. 2256 ...29 18 U.S.C. 2257 29, 50 Pub. L. 104-104, 507(a)(1), (b) (1996) ..50 Pub. L. 108-21, 511(a)(2) (2003) ..50

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Rules of Procedure
Fed.R.Crim.P. 12 ..14

Other Authorities
Alkahabaz, supra (Brief of Amicus Curiae for the Victim Jane Doe and the National Coalition Against Sexual Assault) 39 Final Report of the Senate Select Committee to Study Governmental Operations (April 23, 1976) ...65 International Labor Organization, Convention No. 182 (1996) ...65 International Programme on the Elimination of Child Labour, Every Child Counts: New Global Estimates on Child Labour, (International Labour Office, April 2002) .66 Schauer, Fredrick, The Law of Obscenity (1976) .19-20, 22-23 Schroeder, Theodore, Obscene Literature and Consitutional Law (1972) 19, 21 Tribe, Laurence H., American Constitutional Law (2d ed. 1988) 20 United States Government, Final Report of the Attorney Generals Commission on Pornography (1986) ....28, 31

Historical References
Commonwealth v. Holmes, 17 Mass. 336 (1821) 21-22 King v. Sedley, 1 Keble 620 (K.B. 1663) ..20 Rex v. Curl, 2 Stre. 788, 93 Eng. Rep. 849 (1727) .20-21 The Queen v. Hicklin, 3 L.R.-Q.B. 360 (1868) .....22

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II.

MEMORANDUM OF LAW A. Factual Background

The Indictment returned in this case contains six counts alleging violations of Title 18 U.S.C. 1462(a) & 2. The charges stem from Defendant Karen Fletchers alleged involvement in the operation of an Internet website found at www.Red-RoseStories.com. The Government alleges that six written stories selected from the website are obscene, in violation of federal law, and the standards set forth in Miller v. California, 413 U.S. 15 (1973) (hereinafter the Miller Test). None of the stories are alleged to contain any images, videos, or any other pictorial or audio content. The charged works are not alleged to describe real people or events. Thus, these stories fall into the realm of pure fantasy. Therefore, this case represents an attempt by the United States of America to criminalize the pure written word something that has never been expressly affirmed by the United States Supreme Court, and something that strikes at the very heart of the right to Freedom of Speech guaranteed by the First Amendment to the United States Constitution. Ms. Fletcher contends that this case constitutes an unconstitutional application of 1462 to textual works or, in the alternative, that the Indictment should be dismissed because, as a matter of law, the challenged works: 1) taken as a whole, contain obvious intrinsic literary, scientific and artistic value; 2) the works do not depict in a patently offensive manner, sexual conduct as defined under federal law; and 3) the average person, applying contemporary community standards, would not find the work, taken as a whole, appeals to the prurient interest. Thus, the Government cannot meet the Miller threshold for

12

inclusion of any of the six stories in an obscenity indictment. Preservation of Ms. Fletchers First Amendment rights compels dismissal of this case prior to trial. B. Introduction to Legal Argument

Since the Supreme Courts 1973 decision in Miller, and its companion case, Kaplan v. California, 413 U.S. 115 (1973), the Government has repeatedly challenged the legality of various forms of expression. These cases, generally taking the form of criminal obscenity prosecutions, have tested the application of constitutional protections under the First Amendment. Federal and state prosecutions have challenged expression in a wide array of different forms, ranging from photography exhibits (see, e.g., Cincinnati v. Contemporary Arts Center, 57 Ohio Misc. 2d 9 (1990)), to song lyrics (see, e.g., Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992)), to live adult entertainment performances. See, e.g., Southeast Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (pertaining to the rock musical, Hair). However, over the past thirty-four years, the Government has never sought to prosecute speech composed exclusively from the written word, i.e., non-pictorial works until now. Undersigned counsel is unaware of any obscenity prosecution involving pure text following the Supreme Courts rulings in Miller and Kaplan. The absence of any post-1973 prosecutions under the federal obscenity statutes involving non-pictorial works reflects a sea-change in the manner in which American society, and its representative Government, views obscenity in a non-visual context. Such glaring lack of text-only obscenity cases further reflects a demonstrative evolution in community standards throughout the country, with respect to acceptance of literary works, and recognition of the inherent serious value contained in such works.

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The current case against Ms. Fletcher appears to constitute the first occasion over the course of the past thirty-four years on which such a federal challenge has been initiated. As this Motion and the attached Affidavit of respected author and mental health therapist Dr. Marty Klein demonstrate, the written word is processed differently by the reader as compared to the consumption of pictorial imagery. The reader is in complete control of the speed and volume of textual consumption, and can stop at any time if circumstances or personal preferences warrant. The danger of unwilling exposure to undesired media is therefore far greater with respect to visual imagery. See Affidavit of Dr. Marty Klein, (hereinafter Klein Affidavit), at 11, attached hereto as Defendants Exhibit A.1 Accordingly, the body of evidence on this topic compels a categorically different treatment for written, as opposed to visual, works in the obscenity context. Further, the widespread proliferation of the marketplace of ideas in modern times, resulting primarily from the exponential growth of the Internet, necessitates a reconsideration of the legitimacy, legality, and constitutionality of continued application of obscenity laws to the written word. Again, this is particularly true given the

Notwithstanding, even in terms of visual media, there are suitable, less restrictive alternatives which can filter such content from unwilling exposure. This is especially true where, as in the case at bar, purely textual work is placed on an Internet website, containing age verification and requiring membership. The utility of private filters has again been formally recognized by the District Court in the Eastern District of Pennsylvania to minimize the dangers of inadvertent exposure to juveniles. See American Civil Liberties Union (ACLU) v. Gonzalez, 2007 WL 861120, (E.D. Pa. 2007) (wherein the district court, in striking down the Child Online Protection Act (COPA), found that [f]ilters have some significant utility in denying access to content that may be regarded as inappropriate and, filters can be highly effective in reducing the exposure of minors to inappropriate content if the inability to access large amounts of appropriate material is acceptable) (citing Cranor Testimony, 10/24 Tr. 75:15-76:3; Pl.Ex. 54, at 40, 331).

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undisputed fact that the challenged works were distributed exclusively online to consenting adults. C. Pretrial Consideration Of Obscenity Issues

This Court is empowered to make pre-trial, threshold obscenity determinations under Fed.R.Crim.P. 12, as well as applicable case law. See United States v. Head, 317 F.Supp. 1138, 1140 n.3 (W.D. La. 1970); United States v. Gulf Oil Corp., 408 F.Supp. 450 (W.D. Pa. 1975). In Head, the district court confronted the prosecution of an underground newspaper under federal obscenity laws. As in the case at bar, the defendants moved to dismiss the indictment, pursuant to Rule 12. The district court granted the motion following a legal/constitutional examination of the obscenity of the underlying materials. The district court made the following significant findings: 1. The constitutionality of a statute upon which an indictment is based and [an] allegation that the indictment fails to charge an offense under the laws are issues properly heard on a motion to dismiss; If it is clear on the face of the indictment charging the violation of obscenity statutes that the material was constitutionally protected, the indictment would only charge defendants with doing a legal act and it would add nothing to the charge to cite the statute; and The trial judge has a duty to protect the constitutional rights of defendants who assert protection of the First Amendment. This requires the trial judge, when the issue is properly presented, to pass on the constitutional adequacy of the evidence before it can be submitted to the jury on the question of whether the statute was violated. The trial judges decision is thus not a factual one, but a constitutional one.

2.

3.

Id. at 1140-41. Also, significantly, the trial court equated the role of the trial judge in an obscenity case with that of a libel case involving actual malice. Id., citing New York

15

Times v. Sullivan, 376 U.S. 254 (1964), and the Fifth Circuits decision in Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (1970). The court in Head affirmed the importance of the trial judges obligation to resolve the constitutional issue at the earliest possible point in the proceedings, where the First Amendment is involved. Id. at 1140 n.3. Citing specifically to the Bon Air decision, 426 F.2d at 865, (with a corollary cite to Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966)), the court ruled that [i]n the First Amendment area, summary procedures are even more essential. For the stake here, if harassment succeeds, is free debate. Head, 317 F.Supp. at 1140. Constitutionally, libelous and obscene statements share the same lack of protection, and statements alleged to be either libelous or obscene are entitled to the same stringent examination before found to go beyond the First Amendment. Id. The ruling in Head was later embraced by the Western District of Pennsylvania in United States v. Gulf Oil Corp., supra, in which the district court cited to Head with reference to the power of the trial court to generate rulings on Rule 12 motions to dismiss. Gulf Oil, 408 F.Supp at 459. Indeed, a pretrial determination is even more necessary in this case implicating fundamental rights under the First Amendment than in the context of other nonconstitutional matters. A fundamental precept of the First Amendment to the United States Constitution is that all expression, whether written, pictorial, or by way of performance, is presumptively protected against government interference and restraint. Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); Roaden v. Kentucky, 413 U.S. 496 (1973); Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). Moreover, the loss of

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First Amendment rights, even for minimal periods of time, is presumed by the courts to constitute irreparable injury, per se. Elrod v. Burns, 427 U.S. 347, 373-74 (1976). A speaker, such as Ms. Fletcher, should not be subject to the jeopardy inherent in a trial based upon the challenged works, since, taken as a whole, they are patently nonobscene, and encompass serious literary, scientific and artistic value as a matter of law. By way of analogy, assume that the Governments prosecutorial efforts were directed against a potentially classic or otherwise important piece of literature, such as was the case in 1961 with Henry Millers Tropic of Cancer.2 See Grove Press, Inc. v. Gerstein, 378 U.S. 577 (1964) (per curiam opinion reversing state court obscenity findings). Tropic of Cancer is a robust work, renowned for its blunt, graphic depiction of sex. Also, similar to the charged Red Rose stories, the novel fluctuates between both the past and present tense, as well as both a narrative form and stream of consciousness. While Ms. Fletcher does not maintain that her works are a modern day Tropic of Cancer, as will be discussed below, it was important to her to express her thoughts, and she felt compelled to share these thoughts with others. The threat of prosecution, coupled with the specter of a daunting federal court trial, is a strong deterrent to speech. Such a threat

disconcertingly proclaims, keep your thoughts to yourself, or if you do speak, dont let anyone hear your thoughts. Twenty-five years following the Supreme Courts consideration in Grove Press, the Court reaffirmed the principle that rigorous procedural safeguards must be employed before expressive materials can be seized as obscene. Fort Wayne Books, Inc. v.
2

George Orwell called Millers novel "the most important book of the mid-1930's," and Miller "the only imaginative prose-writer of the slightest value who has appeared among the English-speaking races for some years past. Orwell, George, Inside the Whale (1940). 17

Indiana, 489 U.S. 46, 62 (1989) (citing Marcus v. Search Warrant, 367 U.S. 717 (1961), and A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964)). In these cases, the Court invalidated the pre-trial seizure of a large quantity of expressive materials absent a procedure designed to focus searchingly on the question of obscenity. Fort Wayne Books, 489 U.S. at 62 (quoting A Quantity of Copies of Books, 378 U.S. at 210). Whereas the seizure of a single copy of a book or film for evidentiary purposes may be upheld based upon a mere finding of probable cause, the entire removal from publication requires an adversarial determination of the publications obscenity. Id.

(citing Heller v. New York, 413 U.S. 483, 492-93). Strict standards of proof must be maintained, and elevated consideration of such seizures is warranted when materials [are] presumptively protected by the First Amendment. Id. at 63 citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 n.5; Roaden, 413 U.S. at 502 (courts must focus

searchingly on the issue of obscenity, vel non); Schad, 452 U.S. at 68 (when state action affects First Amendment rights, the standard of review is determined by the nature of the right assertedly threatened or violated rather than the power being exercised or the specific limitations being imposed) (citations omitted). The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials motivates such a rule. Maryland v. Macon, 472 U.S. 463, 470 (1985). Similarly, where a licensing scheme threatens to impose a censorial prior restraint on speech, prompt judicial review of any determination of the licensing officials is mandated by the unique protections afforded to First Amendment protected communications. FW/PBS v. City of Dallas, 493 U.S. 215, 227-28 (1990).

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Accordingly, where First Amendment rights of freedom of expression are affected by governmental action, the obligation and mandate to the court is to expeditiously review the validity and constitutionality of such action under basic principles of First Amendment law. The First Amendments paramount position among all constitutional rights requires that all action seeking to regulate First Amendment activity must be reviewed under the strictest form of scrutiny. Gitlow v. New York, 268 U.S. 652 (1925). All expression is presumed to be constitutionally protected. Reno v. American Civil Liberties Union, 521 U.S. 844, 874-75, 885 (1997). Consequently, cases impacting First Amendment rights must be viewed under a special light. In the framework of the case at bar, the Government failed, prior to receiving its search warrant from the District Court, to submit for analysis the entirety of the Red Rose website. Rather, the Government instead opted to cherry pick which written stories would be submitted in a non-adversarial forum for the Court to make a determination based upon a mere standard of probable cause. Such a scenario is, based upon the cases presented above, clearly unacceptable under the First Amendment. Of even greater note was the Governments wholesale seizure of the entire apparatus of the Red Rose website including, but not limited to Ms. Fletchers computer hardware thus imposing a de facto prior restraint on any continued dissemination of speech by Ms. Fletcher. See Search Warrant of Government in Instant Case (dated August 30, 2005). Thus, the Government failed to meet its obligation of presenting the full depth of the Red Rose website. Further, it failed to permit the Court to make a fully informed determination of the materials in the context of the website, i.e., when taken as a whole.

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Consequently, all materials, otherwise presumed constitutional under the First Amendment, have been wholly removed from circulation. At this point in the proceedings, a pretrial adversarial determination of obscenity is required for the six charged stories. Now, more than ever, the Government, prior to forcing Ms. Fletcher to confront the jeopardy and burden of proceeding to trial, must be required to sustain its constitutional burden in a pretrial, adversarial setting. Accordingly, as will be further discussed herein, closer scrutiny of the charged material, both by itself and in conjunction with the Red Rose website as a whole, reveals that the Government is unable to proceed to trial. Such a conclusion is premised upon the history of obscenity prosecutions, the evolution of societal and legal standards, and even upon closer consideration of the standards pronounced in Miller v. California. 1. a. Non-Pictorial Works are Different

Historical Bases of United States Obscenity Law

In order to fully understand the path of United States obscenity law, one must first reflect back to its history. The historical basis of United States obscenity law extends back to our Nations English heritage. Fredrick Schauer, The Law of Obscenity 4 (1976). But, as also observed, the obscenity doctrine has no precedent in early common law. Theodore Schroeder, Obscene Literature and Constitutional Law 13-14 (1972). i. English Common Law Antecedents

In the 16th Century, ecclesiastical and royal censorship of expression in England was more concerned with political and religious themes than with the sexually obscene. The earliest licensing systems were primarily addressed to the vices of sedition and heresy. During the 17th Century, the influence of Puritanism resulted in a sober

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intolerance of bawdy literature; the portrayal of sexual pleasure was strictly condemned. Laurence H. Tribe, American Constitutional Law 12-16 (2d ed. 1988). The 17th Century case of King v. Sedley, 1 Keble 620 (K.B. 1663), marked the first time a court convicted anyone for sexually-oriented conduct alone. The defendant, a drunken Sir Charles Sedley, removed his clothing, delivered a profanity-laced speech from a London tavern balcony, and then proceeded to pour urine-filled bottles onto the underlying crowd, thus causing a riot. Sir Charles was cited for breach of peace, was fined and jailed for one week. Schauer, supra, at 4. This may well be attributed to Sedleys acts and not just his speech. The beginning of the 18th Century witnessed the emergence of the common law crime of obscene libel; from then on, corruption of morals was an independent common law crime. Id. at 6. The first significant example of obscene libel appears in Rex v. Curl, 2 Str. 788, 93 Eng. Rep. 849 (1727), a case which involved the trial and conviction of the publisher Edmund Curl for his book, Venus in the Cloister, or The Nun in Her Smock. Schauer, supra, at 5-6. The book was a rather intemperate dialogue about lesbian love in a convent, combining both sexual and religious implications. While the religious aspect may be insignificant, politics motivated Curl's conviction. Id. The King's Bench's

rationale in Curl laid the foundation for modern-day obscenity law: [Writing an obscene book] is an offence at common law, as it tends to corrupt the morals of the King's subject, and is against the peace of the King. Peace includes good order and government, and that peace may be broken in many instances without an actual force. 1. If it be an act against the constitution or civil Government; 2. If it be against religion; and, 3. If against morality. As to morality, [d]estroying that is destroying the peace of the

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Government, for government is no more than publick order, which is morality. Curl, 2 Str. at 789-90, 93 Eng. Rep. at 850. The first known United States obscenity prosecution, Commonwealth v. Sharpless, adopted Curl's reasoning when it noted, "an offence may be punishable, if in its nature and by its example, it tends to the corruption of morals. . . . . " 2 Serg. & Rawle 91, 102 (Pa. 1815). Curl's equation between public morality and public order also appears in one of the most significant modern cases affecting United States obscenity law, Chaplinsky v. New Hampshire, 315 U.S. 568 (1941) (establishing the concept of the fighting words exception to First Amendment protections). ii. Early American Common Law

The American colonies, at least in their early stages, never attempted to proscribe speech for its sexual content alone. Schroeder, supra, at 40-41. Censorship in the colonies reflected the early common law focus on blasphemy and sedition. Felice F.

Lewis, Literature, Obscenity & Law 1 (1978). United States obscenity prohibition first appeared in legislation protecting church rituals. Id. at 3. The earliest recorded United States obscenity cases purported to rely on English common law, but in fact, were the first cases published anywhere based entirely on the sexual content of expression. See, e.g., Commonwealth v. Holmes, 17 Mass. 336 (1821). Holmes involved the obscenity prosecution of a books author. In the case, the appellate judge directed his attention to the disputed points of law on which the defendant based his appeal, rather than the issue of whether the work was, in fact, obscene. Id. The judge tacitly assumed the nature of obscenity needed no explanation that obscenity was readily recognizable beyond doubt or question. Id. The judge also appears not to have

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questioned, despite a complete absence of either statutory or common law authority, the ability of the state to ban material considered obscene. See Schauer, supra, at 10 (noting the courts assumption that obscene libel was common-law misdemeanor). Holmes was the first example of a United States court finding a non-pictorial work obscene. Following Holmes, United States obscenity prosecutions were rare, despite the proliferation of obscenity and lewdness statutes. Schauer, supra, at 10-12. In fact, the first formal obscenity test in United States law did not originate in American courts, but in England in The Queen v. Hicklin, 3 L.R.-Q.B. 360 (1868). In Hicklin, the court pronounced the test to determine obscenity as whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Id. at 371. Under Hicklin, a court could find a book obscene on the basis of certain passages without considering the entire work and could look at the effect of those passages on particularly susceptible individuals rather than on the public as a whole. Schauer, supra, at 7-8. In United States v. Bennett, 24 F.Cas. 1093 (C.C.S.D.N.Y. 1879), an American

court first adopted the Hicklin rationale. Thereafter, "prosecutions under the Hicklin rule took a heavy toll on contemporary literature." Tribe, supra, at 12-16. However, the Hicklin test and obscenity law in general were not without their detractors in the beginning of the 1900s. A notable detractor was the esteemed Judge Learned Hand who, in United States v. Kennerley, 209 F. 119, 120-21 (S.D.N.Y. 1913), eloquently stated his reservations as follows: I question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas, and whether they will not believe that truth and beauty are too precious to society at

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large to be mutilated in the interests of those most likely to pervert them to base uses. Indeed, it hardly seems likely that we are even to-day so lukewarm in our interest in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a childs library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.

Following Hands statement, most modern criticism of obscenity law focused on the large number of literary obscenity prosecutions. See, e.g., Charles Rembar, The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer and Fanny Hill (1968); Lewis, supra (cases where courts applied obscenity law to literary works included Leo Tolstoys The Kreutzer Sonata; Henry James Tom Jones; Boccaccios Decameron; Rabelais Gargantua and Pantagruel; Ovids Art of Love; Voltaires La Pucelle; Theophile Gautiers Mademoiselle de Maupin; Wyndham Lewis short story Cantelmans Spring-Mate; Theodore Dreisers An American Tragedy; D.H. Lawrences Lady Chatterleys Lover; James Joyces Ulysses; and Henry Millers Tropic of Cancer). The abundance of obscenity cases between 1870 and 1930 appears to stem from the clash between American puritanism and erotic fiction writers. Schauer, supra, at 13 (noting the development of indigenous American erotic fiction in the largely puritanical society of the early 1800s). Despite ample criticism, staunch supporters of obscenity statutes greatly influenced the development of a formidable body of American law proscribing obscenity. Id. at 12. Some scholars describe the most noted of these

supporters, Anthony Comstock, as having affected English literature more than any writer, publisher, or critic. (citing Albert Gerber, Sex, Pornography and Justice 90-91 (1965)). For those seeking to maintain the status quo, literature's especially enduring and

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effective qualities posed more of a threat than any other medium of expression. Alec Craig, Suppressed Books at 17 (1966) (It is writing rather than speech that attracts authoritative attention and social pressures because it is so much more enduring and effective; and books have been subject to control of some sort wherever they have been an important medium of communication.) Consequently, in the first one and a half centuries of the United States' existence, most obscenity prosecutions targeted nonpictorial literary works. iii. Modern United States Obscenity Law

Prior to the 1940s, courts and litigants assumed the constitutionality of legal restraints on obscene speech. Tribe, supra. This assumption became the focal point of almost all significant court decisions affecting obscenity law in this century. See Chaplinsky; Roth v. U.S., 354 U.S. 476, 481 (1957); Jacobellis v. Ohio, 378 U.S. 184, 187 (1964); Memoirs v. Massachusetts, 383 U.S. 413, 419 (1966); Miller v. California, 413 U.S. at 23; New York v. Ferber, 458 U.S. 747, 754 (1982); Pope v. Illinois, 481 U.S. 497 (1987). Most notably, in 1973, the Supreme Courts holding in Miller overhauled the standard for judging obscenity. Miller, 413 U.S. at 24-25. In its place, the Court advanced a three-part test that has remained the benchmark of obscenity law in the United States ever since: The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable [federal] law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

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Id.; United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123 (1973) (application of the Miller standard to federal obscenity-based statutes). The inception of the Miller standard brought with it an explicit recognition of the ever-evolving, contemporary standards of the community. The Supreme Court

recognized that the community, whether defined on a local level or on a national level, cannot simply be pigeonholed by the standards of previous generations, or by the desires of small, or even large, segments of any community. Rather, just like the Nation, the community is typified by a vast amalgam of differing thoughts, beliefs, and ideologies. The community was not intended as either a simple bow to majoritarian or minority tyranny. Rather, the community would, as the Nations Constitution readily embraces, accord with the vigorous protection of minority, or unpopular expression. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (Justice Stones famous proclamation of the rights of discrete and insular minorities, and the responsibility of the judiciary to uphold the rights of these minorities); Brandenburg v. Ohio, 395 U.S. 444 (1969) (protection of rights of Ku Klux Klan to engage in expression embodied in public march); National Socialist Party v. City of Skokie, 434 U.S. 1327 (1977); Texas v. Johnson, 491 U.S. 397 (1989) (protection of right to express oneself through the burning of the American flag); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (upholding rights of individuals to not be criminally punished for public display of burning a cross). Likewise, since Miller, the development of community standards pertaining to acceptance and/or tolerance of sexually explicit media has progressed to a point where all literary or written works should be fully protected by the First Amendment, unless

26

defamatory, child pornographic, or violative of the Clear and Present Danger test. This redefining of what formats are susceptible to state interdiction, prosecution and punishment commenced prior to the 1973 decision in Miller, and ultimately culminated with the globalization of information as embodied in the Internet. In fact, it is entirely reasonable to attribute a rapid evolution, if not revolution, in community standards to the proliferation of Internet communications which opened access nationwide, and worldwide, to a vast range of literary, social, political and scientific work previously limited by the constraints of world geography. This is certainly not the first time in our history when such has occurred. The intellectual transition/transformation of French soldiers including most notably the Marquis de Lafayette returning from the former British colonies following Cornwallis surrender at the Battle of Yorktown, brought bold ideas home. These ideas were only previously expressed in (of all mediums) often unpopular written print. Yet, these ideas brought to fruition the ability of normal French citizens to empower themselves through knowledge, and to overcome the limitations of an absolute monarchy. The world became smaller. Similarly, Apollo 8s orbit of the moon on Christmas Eve, 1968, also made the world become a little bit smaller. A. Scott Frank, The Wonder Years: The Phone Call, (Original Air Date: April 12, 1988). Likewise, it is the inception and popularization of the Internet that has resulted in this still vast world being condensed to the mere tapping of a few buttons on a computer keyboard. On previous occasions of change, there was a measure of both fear and trepidation. However, rather than allowing the fear to overcome and dominate,

humankind has learned to accept, and even embrace, the change. In no other nation has

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this ability to adapt and accept been greater than in the United States, under the fundamental protections embodied by its Constitution. Non-pictorial works, such as those charged in the case at bar, rely solely upon the printed word, and not on the depiction of any actual erotic conduct by real individuals. The distinction between photographing actual human beings and the creation of virtual or fantasy images was found critical by the Supreme Court in striking down the constitutionality of the Child Pornography Prevention Act. Free Speech Coalition v. Ashcroft, 535 U.S. 234 (2002); see also United States v. Williams, 444 F.3d 1286 (11th Cir. 2006) (striking pandering provision of PROTECT Act as it prohibited speech that constituted non-inciteful expression of thoughts and beliefs). In non-pictorial works, it is only the reader or the listener who, in the recesses of his or her own mind, transgresses any previous perceived limitation on expression. The writer or speaker, like Ms.

Fletcher, by committing his or her own thoughts to paper or, in this case, computer text and by playing off the readers own mental associations, produces the non-pictorial work and thus is no more culpable than the reader consuming the work. Society, as reflected through its governments actions and court fiat, has evolved away from the criminalization of the written word. Even the Department of Justice the very agency prosecuting this action has acknowledged the fundamental distinction between non-pictorial and pictorial works as turning upon the latters graphic presentation of sexual conduct being proscribed under federal and state obscenity statutes. More specifically, the significance of this distinction appears in the Charter of the Attorney Generals Commission on Pornography, also known more commonly as the

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Meese Commission.3 See generally U.S. Government, Final Report of the Attorney Generals Commission on Pornography (1986). The first line of the Charters

description of the Commissions scope of activity identified the scope as a study of the dimensions of the problem of pornography, particularly visual and graphic pornography. Id. at Appendix A, 2. (Emphasis added). The Commissions focus on visual and graphic works singles out the impact pictorial presentations of sexual conduct have on a viewer and suggests that this impact is qualitatively different from non-visual presentations. In fact, it does not appear that any significant consideration was provided to non-pictorial works by the Commission. Rather, the almost complete emphasis of the Commissions investigation was on visual works. See generally id. Accordingly, the widespread range of freedom in American society and under its Constitution has resulted in an evolved societal standard that solidly embraces broad acceptance of textual, non-pictorial works. b. Federal Statutory Codification of the Miller Test

The United States Congress has also responded to Miller. Specifically, 18 U.S.C. 1462, the basis for charges in the instant Indictment against Ms. Fletcher, imposes penalties for the importing and transporting of obscene materials into and within the United States. If obscenity is premised upon how the federal government defines sexual activity, then the Government will have a difficult burden, indeed, in attempting to apply 1462 to the charged Red Rose stories. Sexual activity is not specifically defined under 1462, or any of its corresponding Title 18 sections. Rather, sexual activity proscribed under federal law refers exclusively to actual sexual conduct, not fictitious Among those seated on the Meese Commission were noted conservatives, Edwin Meese and Focus on the Familys founder, the Reverend James Dobson. 29
3

conduct originating in the mind of a person and not conduct that ultimately makes it from the mind of a person into the written word. See, e.g., 18 U.S.C. 2241 (criminalizing aggravated sexual abuse); 18 U.S.C. 2242 (criminalizing sexual abuse); 18 U.S.C. 2243 (criminalizing sexual abuse of a minor or ward); 18 U.S.C. 2244 (criminalizing abusive sexual contact); 18 U.S.C. 2245 (criminalizing sexual abuse resulting in death); 18 U.S.C. 2251 (criminalizing the sexual exploitation of actual children); 18 U.S.C. 2256 (definitions section addressing sexually explicit conduct as involving a person); 18 U.S.C. 2257 (imposing record-keeping requirements on producers of sexual content as applied to actual persons involved in such production). Consequently, it appears that federal law does not provide the Government with a suitable constitutional means of prosecuting entirely textual/non-pictorial works. i. Non-Pictorial, Textual Works Are Different Than Visual Depictions.

Admittedly, in 1973, the United States Supreme Court did not grant non-pictorial works any specialized immunity from obscenity prosecutions. In Kaplan, supra, the Court phrased the issue as "whether expression by words alone can be legally 'obscene' in the sense of being unprotected by the First Amendment." Kaplan, 413 U.S. at 118. To answer the question, the Court responded that [o]bscenity can manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct. Id. at 118-19. Notwithstanding the Court's position in Kaplan that obscenity law does not distinguish between media of expression, the Court has noted in the past that "[e]ach method [of expression] tends to present its own peculiar problems." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952); see also Freedman v. Maryland, 380 U.S. 51, 60-61

30

(1965) (highlighting the uniqueness of motion picture expression and dissemination while finding Marylands treatment of a film to be an unlawful prior restraint). Therefore, each medium of expression must be analyzed in terms of its own unique elements. Southeast Promotions, 420 U.S. at 557 (1975); ACLU v. Reno, 217 F.3d 162 (3rd Cir. 2000), vacated, Ashcroft v. ACLU, 535 U.S. 564 (2002), remanded, ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), 540 U.S. 944 (2003), affd and remanded, Ashcroft v. ACLU, 542 U.S. 656 (2004). In state and lower federal court decisions, the distinctions between one method of expression and another have played prominent roles in determining the constitutionality of obscenity restraints on motion pictures. See, e.g., United States. v. A Motion Picture Film Entitled I Am Curious Yellow, 404 F.2d 196 (2d Cir. 1968) (reversing district court confiscation and forfeiture order of Swedish film); Landau v. Fording, 54 Cal.Rptr. 177, 181 (Cal. Ct. App. 1966), affd, 388 U.S. 456 (1967) (upholding trial courts ruling that French film, Un Chant dAmour, was obscene). In Fording, the California Court of Appeals noted the following: [T]he constitutional protection afforded does not mean that the visual impact of a motion picture as distinguished from other media can be disregarded. Films are obviously different from other forms of expression . . . . Because of the nature of the medium . . . a motion picture of sexual scenes may transcend the bounds of the constitutional guarantee long before a frank description of the same scenes in the written word. Id. The Fording court recognized that the expression conveyed in a motion picture greatly differs from that conveyed in other non-pictorial media. In the early 1990s, in the well-publicized case of Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578 (S.D. Fla. 1990), rev. other grounds, Luke Records Inc.,

31

supra,, the district court also distinguished pictorial and non-pictorial works' methods of expression, stating "[e]vidence of depictions of sexual conduct in pictures, moving or still, is not substantially equivalent to musical lyrics." Id. at 589. The distinction lies in the fact that non-pictorial media rely solely on the images and thoughts provoked by language whereas pictorial media rely on the images and thoughts provoked by graphic representation. The recordings at issue were ultimately found to be non-obscene, as a matter of law, by the Eleventh Circuit Court of Appeal. Luke Records, 960 F.2d at 13839. As previously stated, since the Supreme Courts rulings in Miller and Kaplan, federal courts have adjudicated no cases involving non-pictorial, textual-based works. The infrequency, if not complete absence, of such prosecutions illustrates the widespread recognition, albeit implicit, that non-pictorial works pose a limited, if not nonexistent, threat to society. In fact, after examining numerous pictorial and non-pictorial works, the Attorney Generals Commission on Pornography concluded that non-illustrated books were the least harmful of all available mediums of expression. Final Report of the Attorney Generals Commission on Pornography, at 59. The Commission attributed the relatively safe content of non-pictorial works to the fact that they involve no photographs and therefore there need be no concerns with those who are actually used in the process of production. Id. This is a critical distinction that should be recognized by this Court in deciding whether mere text can still be the subject of obscenity prosecution. The Commission also noted that the absence of photographs necessarily produces a message requiring for its assimilation more real thought and less almost reflexive reaction than does the more

32

typical pornographic item. There remains a difference between reading a book and looking at pictures, even pictures printed on a page. Id. The Commissions reasoning explains why obscenity law, as applied to non-pictorial works, inflicts especially unwarranted punishment on impure thoughts. Accordingly, text-only writings must be held to be not obscene as a matter of law and protected from encroachment on First Amendment liberties. ii. Conduct and Speech Must Be Inextricably Linked

Limits on the freedom of expression enshrined in the First Amendment only arise where expression and illegal conduct are inextricably linked. See Roth, 354 U.S. at 514 (Black, J., concurring) ([f]reedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action to be an inseparable part of it). This rationale inheres most strongly in the context of non-pictorial works. Written materials neither embody actual anti-social conduct, nor have been conclusively shown to incite such conduct. See Klein Affidavit at 13, 15. Consequently, the First Amendment should be read to preclude entirely the suppression of such expression. Applying the Miller test to written materials contemplates punishment for the mere thoughts provoked by the words, given the absence of any antisocial conduct recorded on film or video. Indeed, such application fails to then inflict punishment for overt acts [] or for antisocial conduct. Roth, 354 U.S. at 509 (Douglas, J., dissenting). This is true because any declaration of obscenity with respect to non-pictorial work must, by definition, depend on the thoughts provoked by such work, as opposed to the work itself. Prohibited hard-core pornography, that which rises to the obscene, can simply not subsist in non-pictorial works because these works do not record or display conduct

33

proscribed under state and federal obscenity statutes. No actual antisocial conduct by any real human being plays any role in the evaluation. In New York v. Ferber, supra, the Supreme Court implicitly acknowledged the pictorial/non-pictorial dichotomy when it ruled that only pictorial representations of child pornography are prohibited. Id. at 759. The Court emphasized that "the distribution of descriptions or other depiction of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection." Id. at 764-65. This distinction

addresses the fundamental difference between pictorial and non-pictorial works; the latter do not showcase illegal or antisocial conduct, nor employ tangible illegal or antisocial conduct for their expression. This is even more valid in a situation where, as here, the indicted Red Rose stories involve fictitious, as opposed to real, representations of sexual conduct. The subject matter of a written work is not a basis for proscribing its creation and dissemination. Despite these important distinctions, the charges in the instant case demonstrate that authors of written literary works that tread into taboo areas are still in danger of criminal prosecution for their mere thoughts or fantasies, when reduced to writing. Given the differences in the way written information is processed and the utter lack of any sexual conduct by real human beings, the time has come to excise the pure written word from the purview of obscenity laws. This distinction has continued to be recognized by federal courts, including in an obscenity, as opposed to child pornography, context. For example, in United States v. Pryba, 678 F.Supp. 1225, 1227 n.3 (E.D.Va. 1988), the district court recognized the

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deficiencies imbued in non-pictorial material that make such material unfit for designation as obscene: Significantly, the exercise of describing these materials confirmed a fact that played some role in the Court's decision on these materials, namely, that language, however rich for some purposes, is simply unequal to the task of conveying to a reader what the visual images convey to the viewer. There is, no doubt, a large difference in communicative impact and effect between the written phrase homosexual fellatio and anal intercourse and the vivid depiction of it on video. For example, the latter might well be patently offensive, while the former may not. This difference in sensory impact should be taken into account in making judgments about the relevance and probative value of certain of defendants' proffered evidence. Likewise, pursuant to the distinctions raised by the Pryba and Ferber courts, obscenity laws, such as the one under which Ms. Fletcher is indicted, rely on the misplaced premise that through stimulating sexual desire, obscene material will lead to sexual conduct that is illegal or otherwise inconsistent with current moral standards. However, there is no basis for any such assumption, and the Government has consistently been unable to tie alleged obscene material together with conduct. See, e.g., Free Speech Coalition, supra

(dismissing the Governments notion that the challenge material results in the aggrieved conduct); see Klein Affidavit, at 15. iii. Non-Pictorial, Textual Works Should Be Assessed Under the Clear and Present Danger Standard

The United States Supreme Court has indicated repeatedly that States can normally restrict expression if it tends to prompt disobedience or destruction of life or property. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 595 (1980) (when the government attempts to regulate speech of those expressing views on public issues, the speech is protected by the First Amendment unless it presents

35

a Clear and Present Danger of a substantive evil that the government has a right to prohibit. (Rehnquist, J., dissenting) (citation omitted); Cohen v. California, 403 U.S. 15, 18 (1971) (punishing a defendant for wearing jacket with statement Fuck the Draft violates the First and Fourteenth Amendments unless defendant intended to incite civil disobedience); Bridges v. California, 314 U.S. 252, 261 (1941) (prosecutors must show newspaper articles created such likelihood of bringing about the substantive evil as to deprive them of the constitutional protection) (quoting Gitlow, 268 U.S. at 671). The Court has used the "Clear and Present Danger" test to balance First Amendment freedoms and government interests in preventing violence and destruction. The modern interpretation of the test denies constitutional protection to speech "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. at 447. Nonetheless, it has also been held that "the government may regulate obscenity even though its [sic] does not present a clear and present danger." Central Hudson Gas, 447 U.S. at 596 (Rehnquist, J., dissenting). The exceptional treatment of obscenity flows from the fuzzy premise that obscenity lacks "redeeming social importance," and therefore "is not within the area of constitutionally protected speech or press." Roth, 354 U.S. at 484, 485; see Miller, 413 U.S. at 23; Chaplinsky, 315 U.S. at 571-72. Thus far, the courts have inexplicably failed to require the government to establish the existence of a compelling governmental interest in restricting speech, when evaluating the constitutionality of content based restrictions on speech premised on the concept of obscenity as it would be required to do with any similar law. See ACLU v. Reno, supra; ACLU v. Ashcroft, supra. The existing justification for such restriction lacks any principled constitutional basis because

36

obscene expression in a pure, textual setting is expression just the same, notwithstanding its potentially provocative content and, as such, deserves the same consideration afforded other expression. Judicial exclusion of obscenity from the realm of presumed constitutionality reflects an unfounded assumption that obscenity per se harms society. Yet, the harm which obscenity supposedly causes is far from apparent and has never been judicially established. No scientific evidence has been accepted by any court tending to establish a link between obscene materials and any sort of recognized harm flowing from their distribution or consumption. The courts have been satisfied to presume that obscene speech is outside the purview of protected expression, as a matter of law, without the most basic of proof or correlation to harm. Whatever harm could fairly be attributed to obscene materials, it is drastically reduced when the content at issue involves pure text without any actual depictions of human sexual activity. Given the lack of any presumptive harm resulting from textual expression, the "Clear and Present Danger" test should be the sole arbitrator of whether written materials lose their presumptive First Amendment protection. Such standard is sufficient to

address any concerns that obscene expression endangers American society's moral fabric. See Commonwealth v. Gordon, 66 Pa. D. & C. 101 (1949), affd sum nom. Commonwealth v. Feigenbaum, 70 A.2d 389 (Pa. Super. Ct. 1950). In Feigenbaum, the Pennsylvania Supreme Court specifically approved the Clear and Present Danger test as applied to alleged obscene literature. Id. Under Feigenbaum, the state was required to demonstrate a danger and the clarity and imminence of the danger to defeat constitutional protection.

37

Absent adoption of a Clear and Present Danger standard, the "legality of publication [will] turn on the purity of thought [a work] . . . instills" and courts will inflict punishment "for thoughts provoked, not for overt acts nor antisocial conduct." Roth, 354 U.S. at 508, 510 (Douglas, J., dissenting). The Clear and Present Danger" test conforms to traditional First Amendment doctrine and supplies an appropriate measure for allegedly obscene non-pictorial works. In the instant case, the prosecution does not rest upon works that actively advocate for the immediate, violent overthrow of the Government; nor do the charged stories campaign for the assassination of public figures (18 U.S.C. 1751); nor does the drafting and publication of these stories coincide with the destruction of public property (United States v. OBrien, 391 U.S. 367 (1968)); nor do they involve the passing on of national secrets (United States v. Gravel, 408 U.S. 606 (1972)). Rather, the stories involve fictitious, detached scenarios with fabricated individuals. No one was harmed in the writing of these stories. The Government is unable to prove the existence of any harm except to idly speculate on the potential thoughts that these stories could incite in the mind of an individual.4 Such supposition is insufficient to deprive materials of their constitutional protection and to force Ms. Fletcher to endure a criminal trial as a result. In this sense, the prosecution of Ms. Fletcher under 18 U.S.C. 1462 seeks to achieve precisely that which was recently rejected by the Eleventh Circuit Court in a similar context. In United States v. Williams, supra, a unanimous panel held that the For that matter, if the Government were permitted to do that herein, then it might as well be allowed to argue that Rambo movies incited someone to be more violent, that Ozzy Osbournes antics encourage people to bite the heads of bats, and that Evel Knievel stunts will encourage some disturbed individual to attempt to jump the Grand Canyon. Fortunately, any such governmental proscription effort is preempted by the First Amendment. 38
4

pandering provisions of the PROTECT Act, 18 U.S.C. 2252A(a)(3)(B), were unconstitutional as they sought to attach liability [not] to the materials, but to the ideas and images communicated to the viewer by those materials. Id. 1299. Consequently, that law was attempting to shift the focus from a community standard to the perverted but privately held belief that materials are lascivious. Id. The appellate court then concluded that it could not outlaw the thoughts conjured up by otherwise legal materials. Id. at 1300. In further support of this ruling, the Court explained that Freedom of the mind occupies a highly-protected position in our constitutional heritage. Even when an individuals ideas concern immoral thoughts about images of children, the Supreme Court has steadfastly maintained the right to think freely. As the Court stated in Free Speech Coalition, [535 U.S. at 253], First Amendment freedoms are most in danger when the government seeks to control thought or justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech is the beginning of thought. The Court reiterated that the concern with child pornography is physiological, emotional, and mental health of children, and thus regulation is permissible only when targeted at the evils of the production process itself, and not the effect of the material on its eventual viewers. The PROTECT Act pandering provision misses that target and, instead, wrongly punishes individuals for the non-inciteful expression of their thoughts and beliefs. [Stanley, 394 U.S. at 566 (stating that legislators cannot constitutionally premise legislation on the desirability of controlling a persons private thoughts)]. However repugnant we may find them, we may not constitutionally suppress a defendants beliefs that simulated depictions of children are real or that innocent depictions of children are salacious. Id. (Emphasis added). Correspondingly, the Government in the instant case is utilizing 18 U.S.C. 1462 to police the thoughts and imagination of Ms. Fletcher. As the Williams Court

recognized, the purpose of laws aimed at obscenity and child pornography is to punish

39

the evils of the production process itself. However, the alleged evils of the process would inherently involve the use of actual individuals to produce actual, active material. In the present case, there are no real children there are no real human beings involved in any acts that could potentially be deemed illegal. Rather, all that exists is the pen, the hand and the mind of creator of imaginative, textual works. As evidenced by the

unanimous Williams panel, this is simply insufficient, and abuses the very purpose behind any obscenity law. Further support for this argument, in an Internet context, is illustrated in United States v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997). In 1995, the defendant, Alkhabaz, was a student at the University of Michigan. While there, he used the Internet to disseminate a series of self-penned, sadistic sexual fantasies. Id. at 1493. True and correct copies of the actual Alkhabaz postings are attached hereto as Defendants Exhibit B. Alkhabaz posted one of these fantasies on the website, www.alt.sex.stories, which at the time was the leading pornography bulletin board on Usenet with an estimated 270,000 users. Alkhabaz, supra (Brief of Amicus Curiae for the Victim Jane Doe and the National Coalition Against Sexual Assault) (indicating that defendant wrote a fantasy describing the sadistic rape and torture of the young woman at the request of a website subscriber).5

As opposed, of course, to RedRoseStories.coms estimated twenty-nine (29) subscribers, which arguably included at least one Government agent. The contributing activity of the Government on the Red Rose Website is reminiscent of the interdiction by federal agents since at least the COINTELPRO efforts to infiltrate the Peace Movement of the 1960s, (see generally, Final Report of the Senate Select Committee to Study Governmental Operations (April 23, 1976), which can be viewed at: http://www.icdc.com/~paulwolf/cointelpro/churchfinalreportIIIa.htm); or even recently discovered federal law enforcement activities in the TALON Program. See ACLU Seeks Congressional Hearings on Monitoring of Antiwar Groups, OMB Watch (December 5, 2006), which can be viewed at http://www.ombwatch.org/article/articleview/3650/1/469. Notwithstanding, the 40

(Emphasis added) The fantasy involved Jane Doe, a classmate of the defendants, whom he found sexually attractive. Id. In the story, Jane Doe was identified by her real first and last name, as well as through a detailed physical description. Id. She is seized in her apartment, bound, hung from a ceiling fan, raped, sodomized with a hot curling iron, cut and covered in gasoline, and burned to death for the sexual pleasure of the defendant and a male friend. Id. Jane Does reactions of terror, anguish, resistance, despair and extreme pain are graphically detailed as sexually arousing. Id. Moreover, Alkhabaz included similar stories about other women in his email correspondence with a friend. Id. at 1498. After university authorities learned of the fantasy stories on alt.sex.stories, Alkhabaz was federally prosecuted for sending threats via interstate commerce. The charges were based on his correspondence, as well as the posting of the Jane Doe fantasy. Id. at 1493. The district court dismissed the charges because it found that the e-mail correspondence did not constitute a "true threat" and was therefore protected by the First Amendment. Id. (citing to district court opinion, located at 890 F.Supp. 1375 (E.D. Mich. 1995)); see Watts v. U.S., 394 U.S. 705, 707-08 (1969) (explaining that a statute, [like the ones at issue in Alkhabaz and the current prosecution], which punishes a form of pure speech [] must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech). The Sixth Circuit agreed, upholding the dismissal because it found that

Alkhabaz did not transmit a "credible threat" to his alleged victim. Alkhabaz, 104 F.3d at Government is likely hard pressed to put forth any evidence that any of these alleged subscribers (other than the Government agents themselves) hailed from anywhere within the local community that is supposedly the litmus for assessing part of the Miller standard the Western District of Pennsylvania. 41

1493. The Alkhabaz courts were correct when holding that neither the fantasy posted on alt.sex.stories nor the fantasies e-mailed by the defendant constituted true threats. Id. at 1496. For example, Alkhabaz did not send his fantasies to the women cast as victims. Instead, he disseminated the fantasies to a general audience, perhaps never thinking any female portrayed in the fantasy would see the story in which she played a part. Further, although the fantasies described the rape, graphic sexual torture, and murder of these real women, they were styled as fantastical, hypothetical explorations of what he "might" or "would like to" do to them. Nothing indicated that he intended to carry out the fantasized conduct. One approach, the approach used by the Government in the Alkhabaz prosecution, was to treat the graphic depiction as a threat. If it was a "true threat," it could arguably be prosecuted criminally. If it is merely fantasy, however, it is speech protected by the First Amendment. Likewise, a hypothetical, fictitious, artistic, purely textual exploration of what "could" be done to fictitious characters is inherently protected by the First Amendment, and thus not subject to imposition of criminal liability. If anything, in the context of the Governments prosecution of Ms. Fletcher, this case appears to make an even more compelling case for the inability to constitutionally sustain a prosecution. Whereas, in Alkhabaz, the fictitious portrayal stemmed from real individuals, in the case at bar, there are no allusions to live individuals. The Government is unable to actually demonstrate any nexus between the charged stories and a real person who was presented with a true and immediate threat as a result of the Red Rose depictions.

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D.

The Miller Test is Generally Unsuitable for Gauging Obscenity of Internet Materials Under 18 U.S.C. 1462

Separate and apart from whether textual material can be obscene, other problems are raised by the application of obscenity law to Internet materials. Title 18 U.S.C. 1462 is unworkable in an online environment. This unworkability can be attributed to, among other things, the impossibility of taking entirely interconnected material as a whole for purposes of examination under Miller. Similarly, the nature of the online environment completely frustrates any ability to apply the notion of contemporary community standards to the charged Red Rose stories. Finally, it appears that Congress specifically exempted the material charged herein from being implicated under the criminal sanctions of 18 U.S.C. 1462. Indeed, the Internet is entitled to special considerations because each medium of expression must be assessed for First Amendment purposes by the standards best suited to it, for each may present its own problems. In the special context of the charged Red Rose stories, and prosecution under 18 U.S.C. 1462, this Court is presented with the opportunity and the need to determine and apply the special considerations warranted to the Internet medium. 1. Background Examination Into Status of Federal Obscenity Laws Targeting Internet Speech A brief summary of the Third Circuit and Supreme Courts treatment of online speech regulations is required. Notably, both of Congress attempts to regulate computerized content that is harmful or offensive to minors have been invalidated on First Amendment grounds. The first such statute, the Communications Decency Act (CDA), suffered a relatively swift and uncomplicated death. It was declared

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unconstitutional both by a Federal Court panel and the Supreme Court because it applied to constitutionally protected speech and was therefore overbroad. See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Chief among the CDAs deficiencies was its application to broad categories of indecent or patently offensive material, terms that were undefined in the statute, and its lack of any exclusion for material that contains serious literary, artistic, political, or scientific value as to minors. Id. at 870-71, 865. Perhaps foreshadowing later concerns, the Court also observed that access to material posted on the World Wide Web cannot be limited to specific geographic areas. Id. at 853. The Court then made additional findings regarding the functioning of the Internet, including the fact that websites frequently consist of a number of web pages that are then linked together under a common domain name or perhaps even to other websites altogether. Id. at 852-53. The factual findings in Reno set the stage for additional complications for the CDAs successor statute, the Child Online Protection Act (COPA). Enforcement of COPA was initially enjoined by the district court on the grounds that restricting content on the web that would be lawful if viewed by adults is not the least restrictive means of protecting minors. See Ashcroft v. American Civil Liberties Union (COPA I), 535 U.S. 564, 572 (2002) (citing American Civil Liberties Union v. Ashcroft, 31 F.Supp.2d 473, 497 (E.D. Pa. 1999)). On appeal, the Third Circuit sustained the injunction, but on different grounds. COPA I, 535 U.S. at 572-73 (citing American Civil Liberties Union v. Reno, 217 F.3d at 175). Rather than conducting the extensive First Amendment inquiry undertaken by the district court, the Third Circuits invalidation of the law instead relied solely upon COPAs reliance on community standards to determine if the materials were

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harmful to minors and therefore subject to the statutes access restrictions. Because Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users, the Court of Appeals reasoned that COPA was likely unconstitutional. Id. In a highly splintered opinion, the Supreme Court reversed this finding. COPA I, 535 U.S. at 564. A three justice plurality comprised of Justices Thomas, Rehnquist, and Scalia held that the use of localized community standards to define what is harmful to minors on the Internet does not violate the First Amendment. Id. at 585. Although concurring in the result, Justice OConnor wrote separately to advocate for the use of national standards (as opposed to local community standards) in online obscenity prosecutions. Id. at 586-87. Also agreeing in the result was Justice Kennedy, joined by Justices Ginsburg and Souter, who reasoned that additional fact-finding regarding the scope of COPAs prohibitions was necessary to determine how large a problem the Acts use of local community standards presented. Id. at 592-93. Only Justice Stevens

believed, on the record presented to the court of appeals, that the community standards issue was sufficient to warrant invalidation of the COPA. Id. at 603. On remand, the Third Circuit once again upheld the injunction against COPA. See American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003). This time, the court of appeals undertook the extensive review of COPA it had failed to conduct in its first opinion. It noted numerous constitutional deficiencies with the law, including not only the community standards problem it had discussed earlier, but also the inability of material on the Internet to be taken as a whole. Id. at 252-53; 270. Also fatal to the statute was the fact that it was not the least restrictive means available to protect children

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from harmful online material, given that filters and parental oversight would prove equally, if not more, effective without suppressing speech that is lawful for adults. Id. at 264-65. The case once again traveled to the Supreme Court. See Ashcroft v. American Civil Liberties Union (COPA II), 542 U.S. 656 (2004). In stark contrast to COPA I, however, the COPA II Court upheld the injunction by majority vote. In a line of analysis similar to the Third Circuits reasoning in COPA I, the Supreme Court dispensed with the numerous constitutional flaws outlined by the courts below and instead focused on a single problem that served to invalidate the statute: the availability of filters as a less restrictive means of obtaining the governments goals. Id. at 660-61. Given that Internet technology had likely changed since the district courts initial fact-finding in 1999 and the Courts decision in 2004, the Court remanded the case to allow the government to present additional evidence on the reliability of filters. Id. at 671, 673. Also of note was a strong concurring opinion by Justice Stevens, joined by Justice Ginsburg, chastising criminal prosecutions as an inappropriate means to regulate the universe of materials classified as obscene, since the line between communications which offend and those which do not is too blurred to identify criminal conduct. Id. at 675-76 (Stevens, J., concurring) (citations omitted).6 The Supreme Courts decision in COPA II did not address the Third Circuits reasoning regarding either the taken as a whole or the community standards issues. As such, at present, the Third Circuits second COPA decision remains intact. It is within

Just recently, on March 22, 2007, the District Court, on remand in the COPA II case, issued its permanent injunction against enforcement due to the legislations per se unconstitutionality. See ACLU v. Gonzalez, 2007 WL 861120 (E.D. Pa. 2007). 46

this backdrop that this Court must analyze the constitutional issues presented by the Governments prosecution of Ms. Fletcher for the online material charged herein under 18 U.S.C 1462.

2.

The Miller Tests Reliance Upon Community Standards to Determine a Works Obscenity is Unworkable in an Online Environment

Title 18 U.S.C. 1462 is invalid as applied to the Internet because it effectively limits speech suitable for adults throughout the country based upon the community standards of the most puritanical region. Like the as a whole conundrum, this

argument also draws its support from the Third Circuits decision invalidating COPA. Ashcroft, 322 F.3d at 270. Although the Supreme Court initially reversed the Third Circuit on the community standards issue, see COPA I, supra, the court on remand determined that the community standards issue, while not enough in and of itself to strike the statute, could be considered as a factor in assessing the laws constitutionality. See Ashcroft, 322 F.3d at 270. To that end, the Third Circuit found COPA impermissibly overbroad based in part upon its use of the term community standards to restrict speech on the Internet. Id. By essentially requir[ing] that every Web publisher subject to the statute abide by the most restrictive and conservative states community standards in order to avoid criminal liability, COPA mandates that every Internet speaker who could conceivably be covered by its provisions self-censor their expression based upon the attitudes of the least tolerant community. Id., (citing American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000)). This violates the First Amendment by reducing the range of speech that can be communicated and accessed by adults online. Id.

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a.

Consideration of As A Whole in an Online Environment

A key element of the Supreme Courts analysis excluding obscenity from First Amendment protection was the ability of the fact-finder to consider the material as a whole before judging its legal character. See, e.g., Roth v. United States, 354 U.S. 476, 495 (Warren, J., concurring). That ability is compromised when the federal obscenity statutes are applied in a literal way to online content, which has no logical and easily identifiable whole. Both COPA and 18 U.S.C. 1462, require an assessment of the charged work as a whole to determine whether the work is legal or illegal. See 47 U.S.C. 231(a); Miller, 413 U.S. at 24. Yet, both sets of statutes suffer from the same difficulty of defining the whole on the Internet. To be fair, there does exist one difference between the COPA cases and this prosecution, namely that, because COPA was written solely to apply to the World Wide Web, the as a whole defect appears on the face of COPA, whereas the federal obscenity statutes only encounter the constitutional difficulty of defining the whole when applied to communications on the web. This Court, however, can address that difference by confining its ruling to either dismissing the case against Ms. Fletcher or broadly construing the as a whole requirement as applied to the World Wide Web.7

Also, notable about the Miller formulation is the second element's final clause. Therein, the Supreme Court added a due process standard to obscenity determinations. This protection effectively requires Congress to draw their obscenity statutes to give the public notice of what specific depictions and descriptions the statutes proscribe. In other words, this due process clause requires that the controlling federal statute specifically state what type of depiction is unlawful. By naming the specific prohibited acts the state can purportedly satisfy Fourteenth Amendment Due Process requirements. This issue is presently under consideration in the pending case of Gonzalez v. Extreme Associates, Inc. (Case No. 03-203, W.D. Pa.). 48

b.

Consideration of Contemporary Community Standards in an Online Environment

Likewise, analogous to COPA, the Miller definition, as incorporated into federal obscenity statutes, also mandates that the possible obscenity of a piece of work be assessed based upon community standards. See 18 U.S.C. 1461, et seq.; Miller, 413 U.S. 15. While this definition makes logical sense when a speaker directly and

purposefully communicates his message to/in a particular community, the term becomes unworkable when applied to Internet communications that can neither be directed at, nor limited to, a specific geographic region. See Reno, 521 U.S. at 853. As applied to this case, where the six counts in the indictment relate to stories viewed on a website, the community standards element raises the identical overbreadth concerns addressed in Ashcroft. Because the Website which houses the stories can be viewed from anywhere in the country, or for that matter, anywhere in the world, it is impossible for the content provider to limit his speech to a certain area or to restrict those living in certain regions from accessing it. Ashcroft, 322 F.3d at 270; Reno, 521 U.S. at 853. As such, a

significant risk exists that the stories might be deemed obscene by a jury in Pittsburgh but would be found acceptable by a jury in another city or state. As the Ashcroft court observed, this risk renders the statutes fatally flawed. Id. c. Government Is Unable to Establish a Prima Facie Violation of 18 U.S.C. 1462 Using the Traditional Miller Analysis The Government simply cannot attempt to rebut these propositions by arguing that the charged Red Rose stories are obscene. This cart-before-the-horse argument is flawed on all fronts. The written stories that appeared on Ms. Fletchers website are expressive in nature and are therefore presumptively protected by the First Amendment.

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In fact, all speech is presumed to be protected, and therefore presumptively non-obscene, unless and until it has been determined to be unprotected by a jury properly instructed as to the application of the Miller standards to the work at issue. See, e.g., Roaden, 413 U.S. at 502-04 (discussing presumptive protection that adheres to all non-obscene, expressive materials). Given that a jury has not yet determined the charged stories in this case to be obscene, the material is fully protected and the First Amendment is therefore just as relevant here as it was to the flag-burning wrongfully criminalized in Texas v. Johnson, supra, or to the film improperly banned in Freedman, supra. Moreover, the fact that the Supreme Court upheld federal obscenity statutes against First Amendment challenges over three decades ago is of little bearing herein. Reasonably, none of the cases that the Government will prospectively rely upon addressed the applicability of Miller to the World Wide Web, a global method of communication not even envisioned at the time Miller and its progeny were decided. Moreover, merely because the concept of criminalizing obscenity passed constitutional muster at some time in the past, does not insulate it from future challenges involving other aspects of the constitutional Free Speech guarantee. The Government may not impinge upon protected constitutional rights in the name of legitimate law enforcement. The United States is attempting to utilize its authority to act in an unconstitutional manner. It is doing so by prosecuting Internet speakers for making sexually descriptive writings available to consenting adults. This myopic governmental effort is predicated upon an erroneous reading of the parameters of state power under the First Amendment. Such an erroneous reading is plagued by fundamental constitutional difficulties, particularly under the taken as a whole and

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community standards prongs of the obscenity test as it is applied to the World Wide Web. Accordingly, the only appropriate remedy in these circumstances is dismissal of the pending charges. 3. The charged Red Rose Stories Do Not Fall Within Range of Tangible Material Prosecutable Under 18 U.S.C. 1462 By its terms, 18 U.S.C. 1462 covers only obscene, filthy, or otherwise objectionable material, defined to include any book, pamphlet, picture, motion-picture film, paper, letter, writing, print, phonograph recording, electrical transcription, or other article or thing capable of producing sound. See 18 U.S.C. 1462 (a), (b). It is clear from these definitions that the statutes target only tangible items and not intangible communications. See United States v. Carlin Comm., Inc., 815 F.2d 1367, 1371 (10th Cir. 1987) (holding that 18 U.S.C. 1462 is restricted in [their] terms to the transportation of tangible objects). The plain language of the statute thus evidences a Congressional intent to exclude computerized files from the range of material subject to prosecution. Congress has twice amended the statute in question since the advent of the Internet, once to add interactive computer services to the modes of interstate commerce regulated by the laws. See, e.g., Pub. L. 104-104, 507(a)(1), (b) (1996) (inserting words or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) following carrier in jurisdictional clause of both statutes). Despite these amendments, Congress made no attempts to broaden the types of material covered by the statutes to expressly include computerized or digitized images, including images of nothing but words. At the same time, however, it did amend other laws, most notably 18 U.S.C. 2257, to specifically include these items. See, e.g., Pub. L. 108-21, 511(a)(2)

51

(2003) (inserting the terms computer generated image, digital image, or picture into the range of material triggering record-keeping requirement). Congress was therefore clearly aware of the need for precision in applying existing laws to material on the Internet, yet elected to maintain language in 1462 that limits prosecution to precise, tangible, and non-computerized works. In light of this legislative history, it is clear that 18 U.S.C. 1462, applies to the Red Rose stories alleged to be obscene the Governments Indictment. The statutes application is limited to tangible items, not computerized image files. As such, the Court should dismiss the indictment against Ms. Fletcher. E. Notwithstanding the Inapplicability of the Miller Test to Online, Textual Material, the Charged Red Rose Stories Withstand Constitutional Scrutiny In the alternative, Ms. Fletcher moves to dismiss the Indictment on the basis that the Government is unable to prove that a crime occurred given the obvious artistic, scientific and literary value inherent in the subject written materials. 1. a. The First Prong of Miller As A Whole Issue

The creator of a wholly textual work alleged to be obscene makes a plethora of decisions regarding the content of the work, from which words to string together to make a sentence, to which scenes to include in an individual story. The fact that there are discrete units into which any expressive work can be broken down does not mean that those units constitute the whole for the purposes of Miller. To the contrary, what

comprises the whole has always been interpreted broadly to include the entire creative work the Gestalt and not its subparts. See, e.g., Miller, 413 U.S. at 25 n.7 (discussing

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importance of considering work as a whole and not construing one subpart out of context in assessing a works potential redeeming value). Moreover, of serious consideration to the Court is that any of the approximately twenty-nine members of the Red Rose website (or, at least, however many members that were not actually Government agents) would necessarily have to access a series of web portals to arrive at the charged stories and therefore would necessarily encounter and view other content on the website in the process. Indeed, any potential Government argument might have more force if the charged stories were housed under separate domains in isolation from all other content. However, that is not the way the Red Rose website was structured. Instead, to view the charged stories, a member of the website would access first the Red Rose homepage, then the password page, and only then the full reference page housing the charged stories among other content. In light of this process, there is no basis for excluding this series of content from the whole required to be considered by this Court in a pretrial ruling. To do otherwise would be the functional equivalent of excising a chapter from a book, or a scene from a film, an action prohibited to this Court under both Miller and the First Amendment. Even a cursory examination of the entire Red Rose website will reveal a large number of uncharged content which the Government, presumably, believes to be nonobscene. Notwithstanding, even if the Court were to limit any pretrial obscenity

examination to the individual stories charged in the Indictment, when taken as a whole, these stories reveal intrinsic depth and value. A greater discussion on the inherently nonprurient nature of these stories is provided below in the discussion of the third prong of Miller.

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b.

Contemporary Community Standards Issue

In addition to the difficulty of applying the as a whole component of Miller to online material, the Government is unable to satisfy the contemporary community standards element to the first prong of Miller analysis. The Government can only hope to place undue reliance on outdated, pre-Internet Revolution authority which generally upheld geographic boundaries in defining the community by which allegedly obscene material was to be judged. However, the

Government will be unable to cite to any case law rejecting a nationalized standard, for it is abundantly clear that if a State or Congress chose to reference a nationwide community, it could do so. See, e.g., Hamling v. United States, 418 U.S. 87 (1974). Notwithstanding the impossibility of applying community standards to the Red Rose website, the average person, in the regional geographical area of the Western District of Pennsylvania, would not find the charged Red Rose stories, taken as a whole, as appealing to the prurient interest. By way of comparison, Ms. Fletcher would tender the non-textual, visual example of comparable material subject to wide acceptance in the Western District of Pennsylvania.8 This material is subject to popular acceptance, and yet has not succumbed to any governmental prosecution for being allegedly obscene. Further, various

instances of the material are located on, at the very least, the regions two top cable access companies, through non-premium, basic cable service.9

Fletcher would also adopt and reassert the use of the following visual example for purposes of Millers third prong, and its use of contemporary community standards. 9 For purposes of the current example, please refer to the offerings of Adelphia Cable and Comcast Cable, which can be viewed at: http://www.pc.pitt.edu/downloads/cablelineup.pdf; and 54

The cable television network Comedy Central broadcasts the popular South Park series. South Park is an animated series set in the fictitious town of South Park,

Colorado, and centering around the fictitious adventures of four fictitious boys, approximately eight to nine years of age named Stan Marsh, Kyle Broflovski, Kenny McKormick and Eric Cartman. Also, for purposes of the comparative analysis further provided in the attached Appendice A, and discussed below, the show features other characters such as Herbert Garrison, the boys elementary school teacher; Ike Broflovski, Kyles five year old, adopted brother; Jerome Chef McElroy, the school cafeterias cook; Butters Stotts, a classmate of the boys; Dr. Mephisto, a genetic engineer who looks and sounds like Marlon Brandos character from the feature film, The Island of Dr. Moreau; Sheila Broflovski, Kyles mother; Principal Victoria, the principal of South Park Elementary School; and Mr. Mackey, South Park Elementarys school counselor. South Park has been nominated for the Emmy Award for Outstanding Animated Program on six separate occasions.10 In 2005, it garnered its first Emmy Award for the episode titled Best Friends Forever. On April 5, 2006, South Park was presented with the prestigious Peabody Award, given for excellence in radio and television broadcasting. Moreover, it has been nominated for several other important awards including in 1998, the Annie Award for Outstanding Achievement in an Animated Primetime or Late Night Television Program; in 1999, NAACP Image Award for Outstanding Lead Actor in a

http://www.adelphia.com/cable_entertainment/network_links.cfm. Further, in 2005, the CW (then UPN) affiliate in Pittsburgh, WPCW, purchased the syndicated rights to air reruns of South Park, which (presumably, as a result of its continued ratings and popularity) continues to be seen on broadcast television through the present date. See http://wpcwtv.com/default.aspx?sid=%2fwEFAzIxNQ%3d%3d; http://www.mediaweek.com/mw/current/article_display.jsp?vnu_content_id=1000789774 10 In the years 1998, 2000, 2002, 2004, 2005 and 2006. 55

Comedy Series; in 1998, the GLAAD Award for Outstanding TV Individual Episode; in 2006, the Teen Choice Award for Best Animated Show; and in 2000, an Oscar nomination for Best Original Song, stemming from its feature film South Park: Bigger, Longer & Uncut. Four, separate episodes of this award-winning, popular show all broadcast over the past few years contain comparative instances to what is featured only in writing through the indicted Red Rose stories. Each of the plots for the four South Park stories is detailed in Appendice A, in chronological order of original air date. Following close examination of the episodes detailed in Appendice A, South Park provides this Court with a popularly-accepted example of a visual medium wherein young, animated children are placed into various situations involving sex. The sex often involves children portrayed between five to nine years old. The situations are oftentimes portrayed as, at least to certain segments of the South Park community, normal. Further, unlike non-visual works, such as the indicted Red Rose stories, South Park provides for the actual, visual depiction of the sexual actions. In the episode, Cartman Sucks, the penises of nine year old boys being inserted in each others mouths is depicted openly. Yet, there has been no noted public outcry in the Western District of Pennsylvania. Comcast and Adelphia have not removed Comedy Central or South Park from their respective cable lineups. The show remains a fixture on both the regional and national cable and syndicated television scenes. The shows creators, Trey Parker and Matt Stone, have been accepted into mainstream entertainment and, rather than being subjected to prosecution in the Western District of Pennsylvania, have been the recipients of national awards for quality in arts and entertainment.

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Meanwhile, Karen Fletcher is subjected to federal obscenity prosecution for comparable works involving no visualizations. If anything, as will be further discussed in the affidavit of Dr. Marty Klein, the indicted Red Rose stories leave a far lesser stigma, in their purely written form on a discreet, members-only website, than a popularly broadcast, adult animation show. 2. The Second Prong of Miller Analysis

Upon addressing the second prong of Miller whether the work depicts or describes, in a patently offensive way, sexual conduct defined under the applicable federal law the Government again lacks a method for defining such sexual conduct as it applies to purely textual, and fictitious works, such as are involved with the indicted Red Rose stories. Sex is not per se obscene under all circumstances. City of Chicago v. Hanson, 435 N.E.2d 120 (Ill. 1st Dist. 1981). Similarly, something that is sexually expressive is not necessarily obscene. State v. Botsford, 630 N.W.2d 11 (Minn. Ct. App. 2001), review denied, (Sept. 11, 2001). These principals remain intact in the case at bar. Patent offensiveness of sexual conduct requires actual depictions of actual persons. As stated above in II (D), both the Supreme Courts ruling in Ashcroft, alongside the Eleventh Circuits recent ruling in Williams instill the proposition that the patent offensiveness must be premised upon actual depictions. The purposes of laws such as 18 U.S.C. 1462, is to protect against dissemination of real materials. Williams, 444 F. 3d at 1299-1300. Yet, there is nothing real about the events or characters featured in the indicted Red Rose stories. Age is not a consideration herein because (1) Ms. Fletcher is not

57

charged, nor could she be charged, under a law proscribing child pornography, and (2) there are no real children or any other real participants upon which to base any determination of patent offensiveness. If the Government is premising its obscenity prosecution upon the fictitious age of fictitious children, then its entire argument under the second prong is rendered invalid. Age is not a relevant aspect; rather, it is a

disqualified feature in the context of written materials containing fictitious characters. See, e.g., Free Speech Coalition, 535 U.S. at 245-46, 248 (limiting free speech to pornographic material containing real children). Likewise, the Government is unable to make an argument that the indicted stories involve sexual conduct. After all, there is no real sexual conduct being featured

anywhere within the Red Rose stories. The sexual conduct is fictitious it is imaginary, and subject only to the consensual readers own mind. Again, the First Amendment does not provide the Government with the opportunity to control or regulate an individuals thoughts. Williams, 444 F.3d at 1299-1300. Accordingly, the Government is unable to satisfy the second prong of Miller. 3. The Third Prong of Miller Analysis

Perhaps most notably, the Government is unable to satisfy the third prong of Miller analysis. As the analysis below demonstrates, all six of the charged stories are comprised of serious literary, artistic and scientific value. a. Discussion of the Serious Value within the Charged Stories

The six stories subject to the Governments Indictment, under allegations that each is illegal and obscene are described herein. Prior to entry onto Ms. Fletchers website, the following disclaimer is included, at the top and in red-colored print:
ANY RESEMBLEMCE [sic] TO PERSONS, PLACES, THINGS OR EVENTS FOUND WITHN

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THE STORIES ON THIS SITE ARE PURELY COINCIDENTAL AND HAVE NO BASIS IN FACT. THE STORIES ARE FROM THE IMAGINATIONS OF TALENTED WRITERS. Information or advice received, or perceived, from this Web site should not be relied upon for personal, medical, legal, moral, or financial decisions. You should consult an appropriate professional for specific advice tailored to your situation.

A copy of the full disclaimer and the terms and conditions for use of the Red Rose website is included herein as Defendants Exhibit C. The disclaimer is readily

identifiable, and includes important language regarding the literary and artistic nature of the stories included therein. Moreover, the disclaimer provides information regarding the fictitious, fantasy-based nature of the stories. Finally, the last line provides a notice which infers that the site is one that exceeds merely individual pleasure, but rather extends into other spheres of potential user interest, including for personal, medical or moral purposes. The purposes of the website are further discussed by Ms. Fletcher in her Declaration, attached hereto as Defendants Exhibit D (hereinafter referred to as Fletcher Declaration). Likewise, as previously introduced, in furtherance of Ms.

Fletchers declared purpose for writing and posting her stories, is the sworn Klein Affidavit. i. Story No. 1 Melinda

The first charged story is titled, Melinda. Melinda is, like all the charged stories, a short story composed of fewer than twenty (20) typed pages. Melinda tells the story of an eight year old girl and, in time, her two year old sister. The story depicts how the two girls are brutally raped at the hands of an initially unknown assailant. At some point, in the latter half of the story, the identity of the rapist is revealed to the reader. The first victim Melinda is referred to a female mental health therapist, Dr. Carol Jackson, who uses a variety of mental health techniques, some of them standard to 59

the treatment of rape victims, to assist Melinda with recovery from the trauma associated with the incident. Jackson also uses techniques that are not considered for normal use within the mental health profession. Eventually, in a plot twist revealed to the reader, Jackson, herself, is revealed as the rapist of both Melinda and, in time, Melindas sister. Further, we are exposed to the predatory nature of Jackson, and the impact her assaults have upon her victims. The story appears not to have been written in an off the cuff manner. Rather, it appears that the author conducted research into mental health techniques, as well as the referenced material of real life accounts of child rape victims, and the varied reactions left by the incidents. Further, as is evidenced in Ms. Fletchers Declaration, she, too, was previously a victim of childhood sexual battery. See Fletcher Declaration, at 2-4. The story is written in a very stark and, at times, fast-paced manner, which appears to duplicate the sections of the story from planning, to action, to reflection. Further, the events are presented from the perspectives of all the characters, including Jackson, the sexual predator; Melinda, the victim of sexual predation; and even Connie, the assistant to Dr. Jackson and a one-time child victim of Jackson. In short, the Melinda story, although written in non-euphemistic and often highly descriptive sexual detail, maintains, as a whole, specific elements of literary style, with several bases in reality. Also, as will be discussed below, the story is similar in nature to several other published stories and nonfiction accounts of child sexual assaults. ii. Story No. 2 4 Men 2

The second charged story is titled, 4 Men 2. 4 Men 2 is the charged story of shortest length, encompassing only four and one-half pages. The story depicts the tale of

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a husband and wife, apparently on vacation at a third-world, tropical destination. The location of the story is depicted in a way that perhaps would make the reader envision a setting akin to that of the 19th-Century, French Impressionist artist, Paul Gauguin, who resided for several years on the Polynesian island of Tahiti.11 The author places the reader in the context of a small, rustic cabin set in a society where families will pawn their young children to visiting Westerners for sexual uses. The story brings the reader inside the head of these two individuals, whose objective is to sexually use and abuse their five year old female victim. Again, the author also allows the reader to experience the thoughts and pain from the victims perspective. Like in the Melinda story, 4Men2 does not appear to be a matter of pure extemporaneous writing. Rather, as is reflected in all of the charged stories, the author seems to have taken considerable pains to research and understand the subject matter. And, although this is a purely fictitious account, it seems to possess some bearing in reality. The sexual trafficking of children is a real and continuing enterprise. This was perhaps most recently revealed in the arrest, prosecution and imprisonment of former British glam rocker, Gary Glitter while in Vietnam. In the Glitter case, many were exposed to the continuing nature of such practices, wherein parents knowingly and willfully distribute their children as chattel to affluent Westerners to engage in sexual acts. In this sense, 4Men2, confined to its fictitious, non-pictorial setting, is able to further describe this unusual and illegal world of child sex trafficking, and its impact

11

By way of example, please see Gauguins famous work, Mana'o tupapa'u, on display at the Albright-Knox Art Gallery in Buffalo, New York, which can be viewed at: http://www.19thc-artworldwide.org/ autumn_03/articles/gamb_01.html. 61

upon the child victims. Accordingly, there is both literary and historical context and value present within this story. iii. Story No. 3 Katie

The third charged story is titled, Katie. The story depicts the abduction, and long-term imprisonment and sexual abuse of a six year old girl, Katie, by an elderly sexual predator. Prior to the start of the story, the author added the following, additional disclaimer to the reader: This story is about adults having sex with minor children, sometimes very young children. The sex can be consensual, or non-consensual. I never know until I write the story which way it will go. If you find the subject matter distasteful, please dont read the story. Be a responsible adult and *change the channel* as it were. I do not write my stories to offend anyone, though they often offend some. I write them because it is what I do simple as that. Now, either change the channel or read on and enjoy. This story in particular is sadistic in nature. The man is cruel as he uses the little girl for his pleasure . The choice is yours . (Emphasis added). Thus, the author provides the potential reader with an additional opportunity (beyond the initial website disclaimer) to turn away. Also, as we see, the author is not attempting even to glamorize the depiction. Rather, the rapist is being depicted as someone who is brutal and sadistic in nature. Further, as is revealed through the story, the predator, known to readers simply as David, appears to be victimized by his own serious mental defect, rising potentially to the level of schizophrenia. He believes that Katie is attracted to him and wants him to perform sexual actions upon her. Within the

62

confines of this story, the reader is able to learn about the psyche of a child molester. Toward the end of the story, the reader also views the growing, evolving psychological problems arising in Katie during her four-year imprisonment. Up until this time, during the sizeable percentage of the text occurring in the months immediately following Katies abduction, the story while never glamorizing the rapists actions seems to depict the depth of the fear and loathing of the victim. In fact, in a sense, what the reader is witnessing is a build-up toward a Conrad-esque Heart of Darkness. The reader is brought deeper and deeper into the darker and darker world of the child molester. The intensity, i.e., the pressure and suspense, of the story continues to build and build. However, over the course of imprisonment, as capped by the closing paragraphs, the reader learns of how Katie, in some manner, came to psychologically accept her situation and her abuse. David eventually leaves, thus freeing Katie. At that moment, the reader learns of the codependency that had developed, rising perhaps even to the level of the victim being able to relate to and sympathize with her abductor. This condition, known commonly as Stockholm Syndrome, was arguably recently evidenced in a reallife account of a child kidnapping victim, held for several years by his abductor and whom, eventually, gave up even on normal attempts to flee.12 Like all the charged stories, Katie describes the sexual activity openly. Yet, taken as a whole, the story presents deep value in its depiction of both the psychological depth and evolution of its characters. In that sense, it possesses both scientific, i.e., In a suburb of St. Louis, Missouri, Michael Devlin, an employee in a local pizza parlor, had kidnapped and held a now teenaged Shawn Hornbeck for a period of four (4) years. The Kidnapped Missouri Boys, PEOPLE MAGAZINE, at 94 (January 29, 2007 ed.). 63
12

psychological, as well as literary worth. In fact, Katie raises profound psychological issues relating to the school of psychotherapy termed Cognitive Behavioral Therapy (hereinafter, CBT). CBT is

premised upon the modification of every day thoughts and behaviors, with the aim of positively influencing emotions. Negative and unrealistic thoughts can cause distress and result in problems. CBT was first defined by Dr. Viktor Frankl, a Holocaust survivor. The theory is intended to the search for meaning in all forms of existence, even the most sordid ones, and thus the development of a reason for living. In Frankls seminal work, Mans Search for Meaning, we are confronted with Frankls ultimate thesis that, despite the most absurd, painful and dehumanizing situations, life has potential meaning and that, therefore, suffering is meaningful. In a philosophically ironic sense, Frankl quoted

German philosopher Friedrich Nietzsche13 to describe the experiences encompassing CBT: He who has a why to live for can bear with almost any how.14 Through Frankls sordid existence in Nazi concentration camps, he is able to identify three, distinctive psychological reactions experienced by all inmates: (1) the shock during the initial admission phase to the camp;15 (2) the apathy after becoming accustomed to camp existence, in which the inmate values only that which helps himself or others survive;16 and (3) reactions of depersonalization, moral deformity, bitterness

Nietzsches theories were used to validate the actions of National Socialism in Germany during the 1920s-1940s. 14 Frankl, V. E., Man's Search for Meaning: An Introduction to Logotherapy, at p. 121, (Washington Square Press, New York, 1963). 15 Id. at 8. 16 Id. at 20. 64

13

and disillusionment following liberation.17

Nonetheless, even in the aftermath of

liberation, Frankl notes the reactions of prisoners unable to comprehend the simple pleasures of freedom. Rather, due to the depersonalization that occurred in the camps, everything assumed a surreal quality. Moreover, even upon returning to a normal life, a former prisoner felt bitterness that others were superficial and did not comprehend what he or she had experienced, and also felt the disillusionment when newfound freedom did not end the unhappiness. Id. at 84-86. These psychological themes are sounded in several of the indicted stories, including Katie. Undoubtedly, Ms. Fletcher has not been educated in CBT and its adjunct, Logotherapy. See Fletcher Declaration, at 14. Nonetheless, the elements of CBT are interspersed throughout the charged stories. This can likely be accounted for by Ms. Fletchers own background as a victim of childhood sexual battery. Id. at 2-4. iv. Story No. 4 Redonna Show

The fourth charged story is titled, Redonna Show. Redonna Show provides the reader with a starker and even more vivid depiction of the nature of child sex trafficking. The story revolves around the characters of Redonna and Martin, child sex traffickers who, in addition to providing child sex slaves to their clients, also practiced in the same sexual activities alongside their clientele. Similar to the previous story, Katie, the author of Redonna Show, includes a warning/disclaimer prior to the reader embarking on the twelve pages of the text. The warning reads as follows: WARNING!!! WARNING!!! WARNING!!!

17

Id. at 84. 65

Parts of this story may be EXTREMELY offensive to some readers. I offer no apologies, the story is written as it came to me and I WILL NEVER edit my imagination. Just remember, dont try this stuff in the real world . (Emphasis added). Thus, the reader is placed on notice of the potential for being

offended, can easily and voluntarily turn away from the text, and is warned not to really engage in the events depicted.18 The events portrayed in Redonna Show have a basis in reality and fact. The commercial sexual exploitation of children (otherwise known as CSEC) has been defined as one of the worst forms of child labor by the International Labor Organization (ILO). See International Labor Organization, Convention No. 182 (1996). The Declaration of

the First World Congress Against Commercial Sexual Exploitation, held in 1996, defined CSEC as sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object. Id. According to the findings of the ILO, the causes of CSEC are complex and the patterns differ among countries and regions. For example, in some areas the

commercial sexual exploitation of children is clearly related to foreign child sex tourism. Id. As the reader witnessed, in part, in the 4Men2 story, above, and also within the two Redonna-related storylines, severe poverty, the possibility of relatively high earnings,

18

This is, in fact, consistent with other texts containing material that could be perceived as potentially harmful. For instance, since the early 1970s, The Anarchist Cookbook, has been published, and including in the late 1980s attained media attention for its recipes, which included how to make drugs from the inner peels of bananas, and how to construct explosive devices. The author of the text included, in prominent language, the warning that only a child or moron would actually undertake to construct or use any of the items located within its text. William Powell, The Anarchist Cookbook, at Back Cover (Lyle Stuart, Inc. 1971); see Katherine Mieszkowski, Blowing up The Anarchist Cookbook, Salon.com (September 18, 2000), which can be viewed at: http://archive.salon.com/tech/log/2000/09/18/ anarchy/index.html. 66

low value attached to education, family dysfunction, a cultural obligation to help support family or the need to earn money simply to survive are all factors that make children susceptible to CSEC. Id. Also, on the demand side, and as depicted in at least three of the charged stories, there exists a client preference for young children. Id. International Labor Organization global child labor figures for the year 2000 estimated that as many as 1.8 million children are exploited in prostitution worldwide. This number reflects a wide age range, including pre-pubescent children.19 For example, in Sri Lanka, children often become the prey of sexual exploiters through friends and relatives. The prevalence of boys in prostitution there is strongly related to foreign tourism. Id. In another instance, as reported in a BBC News story, child sex exploitation is a common enterprise throughout Cambodia, including in its capital city of Phnom Penh.20 The demand, as reflected in the BBC story, includes girls under nine years of age. Id. Indeed, such use of children for exploitative purposes is shocking to the conscience. However, this shocking nature is not downplayed in Ms. Fletchers stories. In particular, in Redonna Show, the horror of such exploitation is portrayed in real terms. The physical and sexual abuse is described in shocking detail; the pleasures taken

International Programme on the Elimination of Child Labor, Every Child Counts: New Global Estimates on Child Labour, at p. 20 (Intl Labour Office, April 2002), which can be viewed at: http://www.ilo.org/public/english/standards/ipec/simpoc/others/globalest.pdf. 20 Harding, Andrew, Trapping Cambodias Sex Tourists, BBC News (June 11, 2005). The cited article can be viewed at http://news.bbc.co.uk/go/pr/fr//1/hi/programmes/from_our_own_ correspondent/4078304.stm. See also Borzello, Anna Tracking Africas Child Trafficking, BBC News (April 23, 2004), which can be viewed at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/africa/3653737.stm; Kristof, Nicholas D., Sanctuary for Sex Slaves, N.Y. Times (April 3, 2007) (detailing the plight of millions of girls and boys throughout the world, and particularly in Asia). 67

19

by those individuals engaged in exploitation is unmasked in a way that does not sympathize, excuse, or aggrandize their conduct; and the tribulations, thoughts, and pains of the victims are set out plainly to provide those innocents with their fullest voice. Accordingly, the stories, when taken as a whole, possess both deep historical and literary value. The reader, previously provided warning, may find the story shocking to the conscience . . . or not. Notwithstanding, such fictitious accounts, as the reader witnesses in Redonna Show have a clear basis in a current worldwide horror story. Accordingly, the knowing, voluntary reader of such text, regardless of moral, ethical or societal background is likely left with a more comprehensive understanding of the potential true nature of the child sex trade. v. Story No. 5 J & J

The fifth charged story is titled, J & J, and is broken into two parts. The first part, J & J, revolves around the abduction and rape of an infant. The second part, titled J & J, Part 4, details the abduction of a child and mother, the former being raped, and both eventually being murdered. In each story, the perpetrators are a married couple

named Jakin and Jillian. Once again, prior to the readers entering the story, the author provides a warning/disclaimer. This time, such warning, attached at the beginning of J & J reads as follows: WARNING!!! This story is going to be one of the darkest Ive ever written. It involves an adult couple using a toddler for sexual pleasure. It is nasty, it is DARK, if you cant handle that type of story, please move along to another . Red Rose (Emphasis added). Alongside the other charged stories, J & J involves an exhaustively detailed

68

exploration into the psyches of the two title characters. Simultaneously, the reader is capable of experiencing sympathy or, potentially, empathy for the victims of Jakin and Jillians criminal actions. Indeed, in a sense, the situations described in this story bear resemblance to other, similar situations currently the subject of news reports. For

example, the brutal rape and murder of young Jessica Lundsford by John Couey attained national attention.21 Similarly, the actions of sexual predator/murderer/cannibal Jeffrey Dahmer were widely reported on an international scale.22 Many Americans ask

questions, who could ever commit such a crime, or what does such a person actually think when committing these acts? The J & J story, to a great degree, albeit

fictitiously, expands upon these questions and portrays the horror accompanying these events all too familiar to those individuals switching on local and national newscasts every evening. This story, like the other charged stories, when viewed as a whole, contains serious literary and historical value. The voluntary, knowing reader previously warned before embarking upon perusal of the story is potentially educated about the specific mental dysfunction of individuals like Jakin and Jillian. vi. Story No. 6 M & M

The sixth charged story is titled, M & M. In this final charged story, the reader is once again brought into contact with a character from the fourth, charged story,

21

Couey Jury Wants Death for Florida Girls Killer, CNN.com (March 15, 2007), which can be viewed at: http://www.cnn.com/2007/LAW/03/14/couey.sentence/index.html. 22 1992: Cannibal-Killer Jailed for Life, BBC.com (February 17, 1992), which can be viewed at: http://news.bbc.co.uk/onthisday/hi/dates/stories/february/17/newsid_2731000/2731897.st m. 69

Redonna. The reader is reintroduced to the child sex slave trade, and is introduced to a loose organizational structure for this illicit industry. Again, the reader is exposed to the abuse of the children, and to the pain and torment experienced by these unwilling victims. Yet again, the reader is not exposed to something that can be deemed, as a whole, without serious literary value. Rather, the author has again taken great pains to present these situations and its characters in a vivid and compelling sense. One item of particular note occurs on page six of the story. The author, in a stylistic method akin to the historical fiction works of Herman Wouk, switches the tense of the story from thirdperson unfamiliar to first-person familiar.23 Instead of a detached story told from the perspective of an outsider, the story is thereafter described from the perspective of one of the characters in this case, the primary character, Redonna. Such literary methods, described in greater detail in the following section, must be considered by the Court in making its determination under the third-prong of Miller. b. Discussion of Literary Devices

While reviewing the six charged stories, it is critical to identify the classic literary devices utilized throughout the texts. The literary identity of any written work must be judged by not only its outward story, but also by its internal apparatus. To analogize, the human body is composed of much more than the outward manifestations. Instead, its core functions its being are composed of those mechanisms and organs underlying the skin. Or, to simplify, if beauty is only skin-deep, then a literary examination premised solely upon the isolated words or phrases is only page-deep and without connection to the true substance of the writing.

23

See generally Herman Wouk, The Winds of War (Little, Brown & Co., 1971). 70

Likewise, in judging the serious literary value of any written work, the court must also consider the internal, literary devices from which any story including the six charged Red Rose stories are composed. The thirty-seven items, with subparts, listed and described in Appendice B, attached, constitute a partial listing of defined literary devices that can be identified in the charged Red Rose stories. All of the literary devices listed above can be identified in the charged Red Rose stories. These elements are fundamental to any literary work. From these devices, these elements, the literary work is able to coalesce, to function, to be. c. Analysis of the Literary Genre of the Charged Red Rose Stories

Further, an analysis of the charged Red Rose stories as, when taken as a whole, being of serious literary value must also take into consideration its proclaimed genre. The Red Rose Stories Websites terms of service declared that all stories contained on the website stemmed from the imaginations of the respective story authors. See Defendants Exhibit D. Indeed, review of the charged stories reveals that a substantial imagination, and perhaps deep, painful, and lingering images of personal experience, was required to produce its content. This sense of imagination delivers the charged stories into sub-genres of fantasy and horror literature. Indeed, the fantasy and horror genres often experience a substantial amount of overlap, at times being labeled under the umbrella of speculative fiction.24

24

See Speculative Fiction, which can be viewed at http://en.wikipedia.org/wiki/Speculative_fiction (providing historical and literary overviews of the term). 71

Fantasy is a literary genre typified by the inclusion of fantastic elements in a self-coherent setting.25 Within such a structure, any location of the fantastical element is possible: it may be hidden in, or leak into the apparently real world setting, it may draw the characters into a world with such elements, or it may occur entirely in a fantasy world setting, where such elements are part of the world.26 The fantasy genre possesses a long, distinguished history, arguably dating back to the Epic of Gilgamesh, and continuing through history to encompass works as diverse as Homers The Odyssey, Beowulf, Vyasas Mahabharata, Dantes Divine Comedy, Boccaccios Decameron (which proved quite risqu in its own pre-Renaissance era), Huxleys Brave, New World (containing descriptive images of young children involved in sexual situations), Tolkiens The Lord of the Rings Trilogy, Barries Peter Pan, and Carrolls Alices Adventures in Wonderland.27 Most recently, in the past four months, the noted, Pulitzer Prize-winning author, Norman Mailer, released his newest novel, The Castle in the Forest. In one particular chapter, Mailer describes sexual fornication

between a teenaged boy and an elderly man. Norman Mailer, The Castle in the Forest, at

25

John Grant and John Clute, The Encyclopedia of Fantasy, Fantasy, p. 338 (St. Martins Press 1999). 26 Jane Langton, Fantasists on Fantasy, The Weak Place in the Cloth, p. 163-80 (Avon Books 1984). 27 Also, as noted in the Book of Genesis, the first of the Five Books of Moses, and a holy Judeo-Christian text, there is specific reference to the Patriarch Abrahams nephew, Lot, fleeing with his two daughters from the doomed cities of Sodom and Gomorrah. Chapter 19:30-19:38 details the plotting of Lots two, young daughters to inebriate and then commit incestuous acts with their drunken father. The closing passages of the relevant text reveals that both young girls thereafter become pregnant and give birth to their fathers children/grandchildren. The Holy Bible: King James Version (American Bible Society 1999). 72

Book IX (describing homosexual acts between a pubescent boy and an elderly man).28 Similarly, the fantasy genre has spawned many new subgenres, inspired by the tradition of myth and folklore. Two particular subgenres applicable to the charged Red Rose stories are known as dark fantasy and erotic fantasy. Similarly, such subgenres possess a long,

pronounced literary history. For instance, there is a medieval Scottish ballad about a creature called the Silkie Skule Ferry, a half-seal, half-man who steals children living near the sea (presumably not for the purpose of teaching them to swim). This same storytelling is found in the narrative presented by such famed works as Salingers The Catcher in the Rye (especially as it pertains to its character, Holden Caulfield), and Dickens Silas Marner and Oliver Twist. The erotic/dark fantasy subgenre is premised upon notional or pure ideas. In other words, the works attempt to account for aspects of physical or social reality at a very general, abstract level. Such works are generally composed from the constructs of the human mind, and are not based upon actual data. Such ideas and thoughts cannot themselves inflict any of the socially intolerable harms that societies proscribe to survive. Thus, criminal liability can only be imposed when the thoughts are translated into proscribed actions. Criminal liability, such as the Government is attempting to secure against Ms. Fletcher in the case at bar, cannot be imposed merely for the thoughts or notional ideas that emanate from such thought, regardless of how flawed or anti-social these thoughts and ideas may be. To assume otherwise would remove the Constitution
28

See also Indiana, Gary, The Devil You Know, the Devil You Dont, The Village Voice (January 25, 2007) (discussion of Mailers book, with reference to pedophile scenes), which can be viewed at: http://www.villagevoice.com/books/0705,indiana,75648,10.html. 73

from its hallowed principles, and diminish it to the level of Orwellian dementia. Likewise, the dissemination of content styled, such as herein, as fantasy or fiction, cannot be subject to criminal sanction under Miller analysis, notwithstanding how distasteful or unpleasant an individual reader knowingly and voluntarily exposed to such text may find the presented scenarios. Indeed, there are several other

representative literary works that have capitalized on portrayals similar to those presented in the charged Red Rose stories. A sampling of these literary works is analyzed below. d. The Psychological & Sociological Contexts of Child Sexual Abuse in Literature

The indicted Red Rose stories focus upon incidents of child sexual abuse. A greater, expert discussion of the integral value of such matter is provided within the attached Klein Affidavit. Nonetheless, as an antecedent to the Klein Affidavit, the

sociological and psychological underpinnings of child sexual abuse in the literary genre are discussed herein. Perhaps nowhere is this discussion more comprehensive than in the scholarly publications of James R. Kincaid, Professor of Literary Theory at the University of Southern California. Kincaid, in his book, Erotic Innocence: The Culture of Child Molesting (Duke University Press 1998) (hereinafter Erotic Innocence), concludes in short that the key theme to most works on child molestation is that Molesters are monsters; monsters are everywhere.29 In other words, these works (as evidenced in full fashion in the indicted Red Rose stories), are populated by evil monsters and helpless innocents (rather than flawed or unfortunate humans, and they languish in a miasma of sinister eroticism.

29

Larissa MacFarquhar, Slate, Why Cant We Shut Up About Child Abuse? at 2 (June 17, 1998). 74

Id. at 1. Concurrently, the evil is elusive and invincible. Id. at 2. Typically, the monsters differ in portrayal from Satanic pornographers and incestuous rapists on the one hand, to megalomaniacal therapists on the other. Id. at 3. Likewise, the victims are stereotypically portrayed as either wounded children or daycare Dreyfusses. Id. According to Kincaid, both portrayals make demons out of Freud and the media, but neither step outside the demonology to question why were so obsessed with child abuse in the first place. The story line the threat, the urgency, the need to expose, the extremist language is the same. Id. At the same time, the second-half of Kincaids thesis answers the question of the attraction to such story lines: [T]his repetitiveness is in some nasty little way exactly what we want. Its pleasurable. The more we exclaim how horrified we are by child molestation, the more we can permit ourselves to linger, in a way thats not far from lascivious, over images of childish bodies (Little tummies! Little bottoms! Little feet!) The more we condemn the perversity of child beauty pageants, the more we get to watch luscious little JonBenet Ramsey bat her baby eyelashes and to imagine her gory death. But theres more. Talking about abuse not only permits guiltless voyeurism it also gives shape to inchoate feelings of childhood hurt, it tells us why we are the way we are and gives us someone to blame, and it deflects a sense of cultural or moral decline onto a group of particular individuals. Id. at 4. Consequently, Kincaid concludes, [e]roticizing exists in symbiotic relation with sanitizing, and the veiling and the exposing exist in an encircling doublespeak. Id. at 4 (citations omitted). Western society has, in essence, enthusiastically sexualized the child while denying just as enthusiastically that it was doing any such thing. Erotic Innocence, at 13. Childhood is socially constructed by adults as more of a cultural concept than a

75

biological factor. The child is functional, a malleable part of our discourse rather than a fixed stage; the child is a product of ways of perceiving, not something that is there. Id. at 19. As a result of adult desire, projection, nostalgia, and frustration, childhood is a repository of negations, defined by lack. Kincaid views this process as eroticizing

youth.30 He proceeds to define Western society as constituting a pedophilic culture in denial, creating a mythology of pedophile scapegoats from which to distance and through which to purify themselves.31 Kincaids explication on child sexual abuse in a literary genre is hardly new. The French historian, Michel Foucault, in his History of Sexuality (English ed. 1978), put forth his repressive hypothesis: Those supposedly tight-lipped Victorians, in the course of devising rules to regulate sex and the sciences that investigate its perversions, in fact talk and wrote more about sex than anyone before them.32 See, e.g., The Diary of Francis Kilvert, Kilverts Diary, chosen, edited and introduced by William Plomer (London: Jonathan Cape, 1938; corrected edition, 1960), (the published diary entries of a Victorian English vicar describing his deepest sexual thoughts regarding young girls). The indicted Red Rose stories, to a great degree, typify the literature discussed by Kincaid and Foucault. These stories, alternatively vulgar and revealing and introspective, are an innate part of Western culture. However, in one sense, these stories also vindicate what Kincaid says is wrong with Western culture. The charged stories, unlike many James Kincaid, Four Questions and Answers, which can be viewed at: http://www.ipce.info/ipceweb/Library/four_questions.htm. 31 Susan Honeyman, Erotic Innocence: The Culture of Child Molesting book review, which can be viewed at: http://findarticles.com/p/articles/mi_m2220/is_3_41/ai_57748229/print. 32 Larissa MacFarquhar, Suffer the Children: Why cant we shut up about child abuse? Slate.com, (June 17, 1998), which can be viewed at: http://www.slate.com/toolbar.aspx?action=print&id=3144 76
30

others in mainstream culture, do not deny that true child sexual offenders exist. Rather, the charged stories acknowledge these elements of society, and do not attempt to suppress these elements in a panic, and thus assist in providing society with the ability to change and to deconstruct these myths and the further perpetuation of these myths. e. Analogous Literary Works

As presented above, there is a long, pronounced history of literary works depicting incidents involving scenes involving child sexual abuse. For purposes of the instant Memorandum, several of these published, widely-accepted works are discussed in Appendice C, attached. None of the works mentioned below have been threatened with criminal obscenity prosecution. f. Evolving Principles Under Third Prong of Miller Make It Impossible to Sustain Obscenity Charge Against a Purely Textual Work From the evolution of community standards, as exemplified by the wide range of materials available through the Internet and by the recent holdings of the Supreme Court in the Reno and Ashcroft cases, the following operative principles emerge: Textual-only stories notwithstanding the fictitious ages of the fictitious children, or any other sexual acts involving adult males and females are not obscene in the constitutional sense absent the pictorial, real depiction of explicit sexual acts; All literary publications containing story lines, especially those that are nonillustrated, constitute protected expression and conversely are not obscene under the Constitution; Portrayal in purely written form of males and females, and without regard to fictitious age, constitute protected expression under the First Amendment absent the actual depiction of these acts where no imagination is required to see the

77

acts in progress. In an entirely literary, purely textual context, the ability to perceive such acts is entirely one involving an individuals imagination; Even if, for whatever reason, the charged material somehow meets the Miller proscriptions, there is nonetheless valid consideration sufficient to encompass the material under the protective umbrella of First Amendment freedoms. In other words, in the context of serious value, the work conveys an idea or attempts to convey an idea for the creator/author or to the recipient.33 Therefore, if there is even a modicum of redeeming serious value the materials may not be proscribed. In the context of the case at bar, the analysis above, supported by the underlying affidavits herein, easily make the case, separately for the serious literary, artistic and scientific value of the charged Red Rose stories; and Where textual materials are disseminated to willing adults in an adults-only environment, and are not pandered or foisted upon an individual wishing to avoid confrontation with it or disseminated to juveniles, the materials cannot be proscribed. In the respective, unique contexts of the Internet, as well as the written word, there is no unwilling listener, as existed in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Nor is there the danger of an unwilling

recipient switching channels to objectionable or obscene materials. Rather, in the context of entirely written stories on the Internet, the recipient is never taken by surprise, but rather enters the reading with an expectation of the context. Further, Specifically, in the context of Red Rose, with its various disclaimers, its terms of service, and its age verification device, the willing, knowing recipient of the material. The Government is unlikely to be able to demonstrate that there exists unwilling recipients of the charged materials. Even so, if the Government opted to make such an argument, it would likely run afoul of the Supreme Courts ruling in COPA II, and the findings of the District Court on remand in COPA II. 78
33

there is ease and simplicity in the averting of the eyes and/or the click of a mouse button to cease exposure to such materials. Together, these evolved constitutional principles are clearly evidenced in the indicted Red Rose stories. These written works inherently encompass so much more than the Governments potential for obscene thoughts. Rather, each charged story,

alongside every other uncharged story penned by Ms. Fletcher, involves the deep, thoughtful, intricate processes of the mind. The translation from the mind, onto paper (or, in this case, computer screen) thus becomes the actual embodiment of literary, artistic and scientific substance. In a civilized society priding itself on the liberalization of expression, no other possible conclusion remains. And so it goes .34 V. CONCLUSION

In West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 641 (1943), involving efforts on the part of the State to impose a flag salute requirement upon public school students, Justice Robert Jackson referred to the central meaning of the First Amendment as providing the freedom to be intellectually and spiritually diverse. Justice Jackson further wrote that [i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Id. at 642. Justice Jacksons understanding of the First Amendment evokes a rule that mandates tolerance of offensive speech, i.e., speech that conveys offensive messages. Although this same liberal degree of tolerance need not be extended to offensive conduct,
34

Kurt Vonnegut, Slaughterhouse-Five or The Childrens Crusade: A Duty Dance With Death, (Delacorte Press, 1969), passim. 79

it is nevertheless essential that any analysis of even difficult and close case arising in this context give full effect to the multi-dimensional aspects of the idea of freedom. The First Amendment presupposes that the freedom to speak ones mind is not only an aspect of individual liberty and thus a good unto itself but also is essential to the common quest for truth and vitality of society as a whole. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 503- 04 (1984). Justice Louis Brandeis perhaps expressed this essential constitutional ideal with the greatest eloquence in his concurrence in Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring): Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.

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Id. at 375-76 (citation omitted). Indeed, when placed into the context of the pending prosecution against Ms. Fletcher, we are confronted with exactly the hazards of which Justice Brandeis warned. The current prosecution is aimed at discouraging the thought, hope and imagination of Ms. Fletcher and her willing readers. This prosecution is premised upon a fear for unusual and, at times, fantastic ideas being expressed in Ms. Fletchers stories. The continuation of this prosecution not only constitutes repression of the thoughts and ideas that must circulate freely in a free society, but also endangers the stability of our constitutional system. Tolerance of what is perhaps noxious speech is a principle

embodied within the very fabric of the First Amendment. After all, even the slightest redeeming social importance unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion must be afforded of the protection of the First Amendments guarantees. Roth, 354 U.S. at 484-85. Accordingly, the charges lodged against Ms. Fletcher must be dismissed.

Respectfully submitted, s/Warner Mariani WARNER MARIANI Pennsylvania Bar No.: 61968 428 Forbes Avenue, Suite 220 Pittsburgh, Pennsylvania 15219 Telephone: (412) 281-3360 and

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LAWRENCE G. WALTERS Florida Bar No.: 776529 Admitted Pro Hac Vice JEROME H. MOONEY Utah Bar No.: 2303 Admitted Pro Hac Vice DEREK B. BRETT Florida Bar No.: 0090750 Admitted Pro Hac Vice Weston, Garrou, DeWitt & Walters 781 Douglas Avenue Altamonte Springs, Florida 32714 Telephone: (407) 975-9150 Attorney@FirstAmendment.co m Counsel for Defendant FLETCHER VI. CERTIFICATE OF SERVICE

I hereby certify that pursuant to the Clerks Quality Control Message, I electronically filed the foregoing corrected document with the Clerk of the Court by using the CM/ECF system, which will send notice of such filing to the following: Michael I. Yoon, Esquire, US Department of Justice, 1400 New York Avenue NW, Suite 600, Washington, DC 20005, and Stephen R. Kaufman, Esquire, United States Attorney's Office, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, on this 27th day of April, 2007. s/ Warner Mariani Warner Mariani

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