Fletcher counsel Lawrence G. Walters argues that obscenity laws are unconstitutional as applied to purely textual works.
“This case is a little unique,” Walters told XBIZ. “We don’t believe the content at issue here meets the threshold for obscene material, so we’re asking the court to look at this before trial. We must protect Fletcher’s 1st Amendment rights of free speech; her works have obvious literary value.”
In the motion obtained by XBIZ, Lawrence argues that text is fundamentally different than pictures, because people process text differently. The defense is prepared to offer testimony from expert witnesses to this effect.
At issue in this case are six allegedly obscene works that were available on Red-Rose-Stories.com only for paid members, of which Fletcher claims there were only 29.
“Since the site in question is a membership site, no one could ‘accidentally’ stumble upon these stories; anyone could have stopped reading them before they were offended and there were warnings on the page,” Walters said. “Red Rose’s readers sought out this kind of material.”
While textual works have been ruled to be obscene by the courts, they all come before the Miller vs. California ruling in 1973, which sets the definition of obscenity against community standards. Lawrence said the U.S. Supreme Court has not issued a definitive ruling on whether or not the written word can be judged obscene.
“…Over the past 34 years, the Government has never sought to prosecute speech composed exclusively from the written word,” Lawrence said in the motion. “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…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 literary works, and recognition of the inherent serious value contained in such works.”
Additionally, the defense has filed a motion to dismiss the charges based on strict scrutiny. In order to overcome the presumption that content-based regulations are invalid under the 1st Amendment, the content must survive a strict judicial review, which requires the government to demonstrate that the law (in this case, obscenity law) is narrowly tailored to promote a compelling government interest.
While the 1st Amendment does not protect obscene works, all works are presumed to be protected until a judge or jury finds them to be obscene. Walters argues that since the stories have not been formally judged to be obscene, they are presumed to be protected. Walters said the government has put the “cart before the horse.”
“The government has to show that there is a compelling government interest in the expression that they are trying to prohibit,” Walters said. “The burden is on them to prove that these solely textual ‘fantasy’ stories fall outside the realm of constitutional protection. The government has to justify the obscenity laws. This case urges them to take a fresh look.”
Lawrence said that the government will file a written response to the motion and the court will set oral arguments.