As reported by the Pittsburgh Post-Gazette, Conti’s refusal to dismiss the case stemmed from the fact that Fletcher's attorney's arguments were similar to those made in the Extreme Associates case , which recently were rejected by the 3rd U.S. Circuit Court of Appeals.
Fletcher was indicted last year on six counts of transmission of obscene material in connection with short stories that she posted on the Internet for a $10 monthly fee. Fletcher’s website had 29 subscribers, according to evidence submitted in the case.
Jerome Mooney, one of Fletcher’s attorneys, described her as a “poor, damaged woman” who writes the stories as a therapeutic measure to alleviate the emotional pain caused by her own history of abuse.
Mooney attempted to distinguish Fletcher’s work from graphic visual depictions involving real people and real sex, like the materials involved in the Extreme Associates case.
“Textual material is different than other kinds of visual depictions,” Mooney said. “Text is as close to the process of thought as we can get.”
In response to that point, Conti asked Mooney if the problem in the case wasn’t that Fletcher had written the stories, but that she had sold them for profit. Mooney countered that the only way Fletcher could disseminate the stories online, and at the same time keep children from reading them, was to require the subscription fee, payable by credit card.
“The 1st Amendment doesn’t mean much if one is only allowed to write down their own thoughts for their own perusal,” Mooney said.
Assistant U.S. Attorney Stephen R. Kaufman responded that the government is not trying to control Fletcher’s thoughts.
“There’s no legal prohibition with Ms. Fletcher sharing these stories with next-door neighbors or friends,” Kaufman said, adding that the law does prohibit distributing such stories through the mail or online.
After Conti denied the motion based on that argument, Mooney reportedly moved on to his next contention, that under the Miller test for obscenity, the work at issue must be considered as a whole. Taken as whole, Mooney asserted, Fletcher’s work would not be considered obscene under contemporary community standards.
Mooney further asserted that the government had erred in charging Fletcher based on the six individual stories, saying that the government should have considered Fletcher’s website in its entirety the “work” in question, and charged her with only one count.
Kaufman countered that the stories were published separately on her website, and were not related to each other.
Mooney also argued that given the online nature of the work, it’s difficult to define the “community” affected.
Kaufman responded by saying that in this case, the community is the area from which the jury will be drawn, which is the Western District of Pennsylvania.
After the hearing, Mooney told reporters that he wasn’t surprised by the judge’s rulings on most of the issues, especially in light of the 3rd Circuit’s ruling in the Extreme Associates case, which still has not gone to trial.
Mooney said that he was disappointed, however, that Conti declined to make a pretrial determination of whether the stories are obscene. Mooney noted that Fletcher has been kept from publishing her stories due to the charges pending against her, even though there has been no finding that the stories are legally obscene.
“It has a chilling effect,” Mooney said. “We try very hard to keep speech free.”