United States v Karen Fletcher (2006)
Fletcher’s Lawyers
Indeed it is our contention that the actions in this charge do not in substance amount to obscenity. It is our contention, which we humbly submit, that the contents of the Red Rose Website in their entirety do not constitute any form of obscenity. In seeking to convince the court of our contention we wish to rely on the celebrated ruling of Miller v California. Indeed, the Miller test was muted with the intention of phasing out the previous bad law. The Miller test classifies obscene material as that which lacks serious literary, artistic, political and scientific value. Indeed, it is critical that all these elements are considered against the texts that are alleged in this particular case as being obscene. It is our submission that an objective test would prove that the allegations are vexatious, frivolous and an abuse of the court process.
Foremost, the court should be restrained in arriving at its decision. This is because the allegations in this case are peculiar to the jurisdiction of the United States of America and indeed to any jurisdiction the world over. Where on earth has mere texts constituted obscenity? It is our contention that this approach is an affront to the First Amendment provision and should, therefore, be treated with the contempt it deserves. The freedom of expression granted by the First Amendment must not be attacked through covert ways in the nature of the prosecutor’s assertions. In addition, in considering the nature of texts, we urge the court to consider the accused’s medical conditions and the fact that the texts were a cathartic approach towards solving a rather deep rooted psychological problem. The court must not close its eyes to the plight of the accused.
US Attorney Mary Beth Buchannan
The prosecution asserts that the material in the form of the texts indeed constitute obscene material. It is essential to consider the case from the totality of circumstances rather than from plainly reading the same as the defense is purporting to. In addition, it is critical to appreciate the definition of obscene material as laid out in the Miller case. At this juncture, the court is urged to consider the lack of serious literary, artistic, political or scientific value connotation as laid in the Miller test. The prosecution wishes to rely especially on the first and second ingredient. This is the literary or artistic value. First, it is critical to dispense the misapplication of the law by the defense in their purported omission of texts from obscene materials. Indeed, texts have the capacity of being literary or artistic work. In that vein, the texts in question should be considered in that light.
The question then is whether they have value? The prosecution’s answer on the same is in the negative. It is on that premise that the prosecution considers the texts obscene. Secondly, it is essential to appreciate the effect the texts have on the community. It is not in order to rely on medical grounds to perpetrate such obscenity that offends the communal standards and the moral tenets anticipated of a member of the community. Lastly, one may not rely on the First Amendment to defend obscenities. Indeed, the progressive First Amendment had the intention of promoting free speech that does not offend society. The texts in question directly offend the society and in that context fall out of the protection envisaged by the First Amendment.
