Fletcher stands accused of disseminating alleged obscene fictional stories on her website describing the torture and sexual abuse of children.
The works at issue in the case are sexually oriented stories presented without pictures of any kind.
It is fair to say that obscenity prosecutions involving such material have been quite rare in recent years, so one might wonder whether — under the "contemporary community standards" that control much of the prevailing obscenity definition — text alone can ever be sufficiently "offensive" these days to push a work over the line from constitutionally protected expression to unprotected and illegal obscenity.
Fletcher was charged with one count for each of six stories that involved the kidnapping, torture, sexual molestation and murder of children ages 9 years and younger.
A prosecution as unusual as this one naturally prompts some historical reflection; in any event, part of being fully armed to defend ourselves in the "culture war" (which has been declared by many conservatives) involves knowing the history of obscenity law in the U.S. and, before that, in England. That history is fairly well known to scholars, but it holds some unpleasant surprises for cultural conservatives. A few snippets of that history are sketched here.
Aretino's Postures
There is little surviving information concerning obscenity prosecutions — if there were any — from the Middle Ages. The history of modern "pornography" (and therefore of obscenity law) begins, not surprisingly, about the time the printing press was invented. Those who trace the history of controversial, sexually oriented expression generally begin with an Italian book first published around 1527 and widely known as "Aretino's Postures." As its name suggests, it was devoted to different sexual positions with a poem describing the delights of each. Even at the dawn of printing, though, it was not the poems but the drawings depicting those postures that made the work so notorious. So from the beginning, there has been something of an understanding that sexually oriented text is less problematic than a sexual image.
For a long while, "Postures" was fairly widely circulated in Europe along with a number of other bawdy pictures, songs and stories. One 1675 letter relating the surreptitious efforts by some Oxford University students to use the university printing press to produce copies of "Aretino's Postures" takes a decidedly "boys will be boys" tone, and the incident quite clearly did not lead to any prosecution. And there is little doubt that there was a good deal of sexually oriented expression around — not just high literature like "The Decameron" but also less lofty works such as "The Wandering Whore," "The School of Venus," and, by 1683, "Venus in the Cloister," or "The Nun in Her Smock."
The few scattered efforts at suppressing works like these seem to have come from church officials using church courts that were fast losing any sway they ever had over the common people of the day. Indeed, when James Read and Angell Carter were prosecuted in 1708 for publishing "Fifteen Plagues of a Maidenhead," the law court held that obscenity could be dealt with, if at all, only by the increasingly irrelevant church courts.
But over time, in England and later in the U.S., successful criminal obscenity prosecutions were lodged against the publishers and purveyors of books that lacked any kind of pictures. The first few of these cases seem riddled with ulterior prosecutorial motives — sometimes, as in the case of the radical publisher John Wilkes, overtly political — and complicated by significant factors other than mere publication of sexual expression. But by 1868, the English law courts were suppressing works such as "The Confessional Unmasked," "Showing the Depravity of the Romish Priesthood," "The Iniquity of the Confessional," and "Questions Put to Females in the Confessional."
The "questions put to females" were, at least according to this anti-Catholic tract, pretty racy, so even without any pictures, an elderly, upper-class English judge thought that such a work "tende[d] . . . to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
And for a time, too, American courts convicted publishers and others connected with such written works as "Fanny Hill." Indeed, almost 150 years elapsed between the first American obscenity conviction concerning "Fanny Hill" and the U.S. Supreme Court decision declaring it fully protected by the 1st Amendment.
But starting in the early 20th century, important and influential American judges began raising free speech concerns in connection with obscenity prosecutions. They narrowed the legal definition of obscenity, and they found merit — literary or social — in many works that judges of the Victorian era would have condemned without any difficulty. For a time, these adjustments led to acquittals in cases involving works such as Mary Dennet's sex education manual "The Sex Side of Life" and James Joyce's "Ulysses" even without expressly considering the 1st Amendment.
Bring On Miller
In fact, it was not until 1957 that the U.S. Supreme Court expressly considered whether obscenity amounts to some sort of exception to the 1st Amendment's free speech clause. In a close ruling, the court decided that obscenity is such an exception, but the court was not very clear about why this is the case or what counts as legally obscene. What resulted was 17 years of pitched obscenity battles in American courts leading to the deeply problematic patchwork obscenity test announced in the 1973 Miller case.
Many aspects of that obscenity war are still with us, and they will form an important part of obscenity litigation in the years ahead. Arguments now being advanced, for instance, that would protect even legally obscene expression if confined to consenting adults will draw upon subtle aspects of this history of obscenity law. But as it concerns obscenity prosecutions for text alone, one clear portion of that history is critical.
About five years after determining that obscenity is an unprotected exception to the 1st Amendment, the U.S. Supreme Court justices found themselves sharply at odds over what amounts to obscenity. The Postmaster General had excluded from the mails some muscle magazines containing pictures of scantily clad and perhaps unclad but in all events very buff men. The Postmaster General was no fool, he explained, and he just knew that the appeal of these magazines was to — horror of horrors — other men! Reasoning that they thus appealed to a "prurient interest" — the salient defining characteristic of "obscenity" according to an influential criminal law project that the court had considered in the 1957 case — he determined that the magazines were obscene and therefore unmailable.
But a splintered Supreme Court reversed the decision. At least two of the justices — Harlan and Stewart — held that something must be "offensive" before it can be legally obscene. As the justices continued to fight over a definition of obscenity over the years, these justices stuck to their guns. And because they were necessary to get a court majority to uphold any obscenity conviction, their view became incorporated into the patchwork of the governing obscenity test.
It is still there: In order to obtain a criminal obscenity conviction, the government must prove beyond a reasonable doubt that a work predominantly appeals to a "prurient interest" and that it is "patently offensive." (The government must also prove a lack of serious value). Under this "patently offensive" standard, the U.S. Supreme Court has never issued an opinion upholding an obscenity conviction for text alone. To be sure, the precise language of the offense prong of the governing obscenity test — "depicts or describes in a patently offensive way" — is plainly designed to leave open the possibility that pure text could be legally obscene. And on the very day the court announced the present test, it expressly kept alive an obscenity prosecution involving text alone.
But both the "prurient interest" and the "patent offensiveness" elements of the obscenity test are governed by "contemporary community standards." The term "contemporary" contemplates that these standards can and will change over time. That is why, on any night of the week, premium cable channels show material that almost everyone would have believed was obscene in the 1960s when the obscenity test itself was somewhat more speech-protective than it is now.
With respect to pure text, though, it really is difficult to see how it can offend the unwilling. An image is seen and understood essentially instantaneously. Text, on the other hand, must be read; and one can simply stop reading before being offended in any remotely serious way. In our contemporary society, we are bombarded with sexual images that fall far short of legal obscenity. It is entirely possible that, in this environment, text has simply lost its ability to shock and offend the unwilling. Contemporary community standards may thus have evolved to the point where pure text is just not legally obscene anymore.
Cultural conservatives will complain that this would not be evolution but rather the opposite. But when we reflect on the fact that the obscenity doctrine legalizes and institutionalizes intolerance of speech — speech which, in any event, the audience remains entirely free to accept or reject on its own — it is difficult to imagine how developments that limit the scope of the obscenity doctrine amount to anything other than progress.
