Law Blogger Questions Legal Rationale Behind Red Rose Prosecution

Tom Hymes
CYBERSPACE — Attorney, novelist and blogger Julie Hilden has posted a lengthy post in the commentary section on that sharply criticizes the prosecution of Karen Fletcher, aka Red Rose, who pleaded guilty in May to six counts of distributing obscenity online after a federal grand jury had indicted her in 2006.

Fletcher, who claimed that she had been sexually abused as a child, maintained a website that contained fictional stories written by her that described the torture and sexual abuse of children. The site had 29 subscribers who each paid a $10 per month subscription fee.

Hilden says that Fletcher was unjustly prosecuted to begin with because the First Amendment protects her conduct, and that the government decided to prosecute her — and was able to get away with it — because of society's strongly held feelings about child sexual abuse, and also because Fletcher's site was a paysite.

Her first basic contention is that the understandable outrage over child sexual abuse has led to a general lessening in society's respect for First Amendment protections.

"The emotion excoriating child rape and abuse is laudable; the use of it as an excuse for injustice is not," she says. "For instance, no one seems to care about entrapment, if a child predator is entrapped; to the contrary, it is applauded. Indeed, the very word 'predator' connotes a lawless, animalistic world ruled by violence, where the law is ineffective or beside the point."

Hilden asserts that recent rulings by the Supreme Court have also "reflected society’s increasingly aggressive views regarding the sexual abuse of children." In Kennedy vs. Louisiana, she says, the court only narrowly defeated by a 5-4 vote a move to make child rapists eligible for the death penalty."

"It seems likely," she says, "that death penalty advocates thought that the strong emotions that child rape arouses in all of us — including the justices — would serve as the best wedge to use to expand the application of the death penalty."

She also points to U.S. vs. Williams, where the court upheld a federal law that outlawed the sale of virtual child pornography.

"Perhaps sensing the turning tide in this area, and its dangers," Hilden says, "Justice David Souter [joined by Justice Ruth Bader Ginsburg] dissented. Souter pointed out that, '[I]f the Act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear. True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression.'"

Hilden's second basic contention is that text on the Red Rose site was targeted because it had subscribers that could have been influenced by the extreme ideas contained in the writings. She cites the judge's embrace of this advocacy theory as an indication of why Fletcher was being tried.

"According to the Wall Street Journal Law Blog," Hilden writes, "[Judge] Conti told Fletcher, 'If anyone would have read the story and acted upon it, a little child could have suffered devastation that you would have had to live with for the rest of your life.'

"The judge’s remark clashes directly with the Supreme Court’s First Amendment jurisprudence – which requires a very demanding showing if speech is to be censored on the ground that it advocates unlawful conduct."

Hilden says that such a showing could not have been made, first, because an advocacy test requires imminence, which was inlikely in this case, and second, because the test must turn in part on the speaker's intent.

"Fletcher claimed that her intent was not to advocate child abuse, but to provide comfort for herself and others who had suffered it," Hilden says.

Hilden insinuates that, despite the paucity of sound legal reasoning behind the decision to prosecute, the government has clearly signal its intent to continue prosecuting written material similar to Fletcher's.