On the site's main page, webmaster Rosie wrote that FBI agents "took all of my computer equipment and many of my diskettes" and explained that the fictional stories she had posted (some of which allegedly dealt with extreme topics like bestiality, scat, water sports and severe torture) had been removed.
There were, according to Rosie, no sexual pictures on her site, only text. The fact that textual fiction could be the target of a possible obscenity prosecution in the U.S. in 2005 comes as a surprise to many people in the adult entertainment industry. In recent decades, the written word has not been a major target of obscenity prosecutions in the U.S., but the FBI investigation of Red Rose indicates that the written word may not be the safe haven that adult-oriented publishers have been assuming it is.
No Charges Filed
First Amendment attorney Lawrence G. Walters, who is representing Red Rosie, told XBiz that as of Oct. 19, no charges had actually been filed against Rosie. She was, at that point, merely the target of an investigation, not under arrest or prosecution. Nonetheless, the fact that a text-based, fiction-oriented website has even been considered for obscenity charges isn't something that Walters and other well-known First Amendment attorneys interviewed for this article (including Gregory Piccionelli, J.D. Obenberger and Clyde DeWitt) had anticipated.
"It's a bit surprising that any law enforcement agency is trying to pursue textual descriptions of anything for obscenity," Walters told XBiz. "But the fact that it's happening causes a significant First Amendment concern in the adult industry. The assumption was that fictional stories were not a problem and were fully within the realm of protected speech. The assumption was that you have nothing to worry about as long as you just have text; now, we see that that may not be the case. And so, a lot of webmasters who have relied on that assumption are reevaluating the legality of those kinds of sites and are trying to decide whether the continued publication of the material is worth the risk."
According to DeWitt, the last time textual fiction became the possible target of an obscenity prosecution was in 1991, when he represented a San Diego-based client who feared a possible obscenity trial for an adult book called "Chicken Hawk Cop," which DeWitt described as a novel about a police officer who was a pedophile. But the case was dismissed by a judge and never went to trial.
"I've been defending porn for 25 years, and my experience is that jurors and the public at large believe that there is a great deal of sanctity to the printed word," DeWitt told XBiz. "There is a high percentage of Americans who think that obscenity prosecutions in general are a bad idea, but if you asked them about obscenity prosecutions of merely the printed word, I think that percentage would go way, way up. Most people just don't think that the printed word is something that should be subject to obscenity prosecutions no matter how offensive they find something."
The FBI investigation of Red Rose came not long after the FBI formed a new anti-obscenity squad at the request of Attorney General Alberto Gonzales, who has been a strong proponent of increasing the number of obscenity prosecutions throughout the U.S. Piccionelli told XBiz that he is "aghast" that the FBI is going after the written word and sees the investigation of Red Rose as a frightening example of the influence that the Christian Right has on the federal government in 2005.
The Red Rose Surprise
"In the last few years, I've had a lot to say about government over-stepping under the Bush administration," Piccionelli said. "But this situation with Red Rose Stories is a surprise to me. This is so far over the line. I really did not think the government would resort to going after the written word. They'll lose, but the fact that they are even willing to roll the dice and terrorize this poor woman in the manner that they have is frightening. Watch your back. This is chilling. This is the American Taliban at work."
Piccionelli continued: "I believe that this era is not going to be remembered as the era of the terror war; it will be remembered as the era of the culture war. You have the Islamic fascists who want the world to be their culture, and you have the Religious Right evangelicals in the U.S. who want the world to be that culture. And if either of these crazy bastards get the power, all us in between are in jeopardy."
Susan Wright, founder and executive director of the Baltimore-based National Coalition for Sexual Freedom (NCSF), is equally critical of the FBI raid of Red Rose's office. Reflecting on Red Rose's problems and other recent obscenity investigations or prosecutions, Wright asserted: "Americans should have the First Amendment right to share images and text of consensual adult sexuality with other adults. These prosecutions are politically motivated to try to appease religious conservatives. It's a huge waste of taxpayers' dollars."
The government alleges that some of the fictional stories that were removed from the Red Rose site described sex with children. The Chicago-based Obenberger explained that while child pornography is flat-out illegal in the U.S. and doesn't enjoy First Amendment protections, textual fiction that describes pedophilic acts is not considered child pornography by the U.S. government. Obenberger added that it can, however, be prosecuted under obscenity laws.
Prosecuting the written word for obscenity is hardly unprecedented; obscenity prosecutions began with banning the written word in England and made their way to the U.S. in the 19th century. One of America's most militant book burners was a fundamentalist Christian activist/lobbyist named Anthony Comstock (1844-1915), who achieved considerable power in his day. The Comstock Act, which Congress passed in 1873, greatly restricted or prohibited the distribution of not only countless books he considered obscene but also pamphlets promoting birth control. The Comstock Act made Anthony Comstock a special inspector for the U.S. Post Office and gave him the authority to seize and destroy any books, magazines or pamphlets he deemed obscene. Comstock inspired numerous obscenity prosecutions.
In the first half of the 20th century, American obscenity laws were used to ban or restrict some classic books, including James Joyce's "Ulysses," Ernest Hemingway's "For Whom the Bell Tolls" and D.H. Lawrence's 1928 novel "Lady Chatterley's Lover." But as technology evolved, the written word became less and less of a target for obscenity prosecutions; after the 1960s, prosecutors were — generally speaking — much more interested in going after films and magazines that showed actual nudity.
Obenberger said that because of the Supreme Court's landmark Miller vs. California decision of 1972, prosecutors will have a very tough time showing a jury that text is obscene. According to that High Court ruling, a prosecutor must show a jury that a work is obscene because it (1) is prurient according to contemporary community standards, (2) is patently offensive, and (3) lacks serious literary, artistic, political or scientific value when taken as a whole. And if the work in question consists of nothing but text, prosecutors are facing a "formidable burden," Obenberger noted.
"To be very candid, I think that if a text case — no matter what the text is — were competently defended, it would be a substantially uphill battle for the government to garner a conviction," Obenberger said. "I think it's going to be very hard for the government to secure convictions based on text alone, and I think the government is going to find that it isn't easy to apply the elements of Miller to a text case. There is a lot of respect for the printed word, even when people do not like the story that is being told."