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Legal Hypothetical Example 3

Question:

In 2016 Karen Fletcher of suburban Donora, Pennsylvania was indicted on six federal charges of distributing obscene materials over the Internet. The fictional texts featured detailed stories about the molesting, torture and sometimes gruesome murders of children under the age of 10, mostly girls.

Unlike typical obscenity cases, Fletcher was charged with violating the law through simple writing, and not with pictures or movies. Fletcher ran what was known as the "Red Rose" Web site, where she posted her fictional stories. In order to prevent minors and others from accessing the site improperly, Fletcher charged members a $10 monthly fee to have access to the site. At the time of the indictment, there were only 29 members to the site. No other member to the site was charged within the indictment.

Fletcher’s lawyers argued in court proceedings that their client was not guilty of the charges. The jury disagreed and found the website obscene. Will that conviction be upheld on appeal? Why or why not? Discuss the complete test a court would apply.

Answer:

For this case, the category of law is obscenity. The legal definition of obscenity is derived from the case Miller v. California where, if material passes the Miller test, it is deemed obscene. The Miller test is a three-part absolute test.

The first part of the Miller test says that: “’The average person, applying contemporary community standards,’ would find that the work appeals to prurient interests.” Prurient interests refer to content which is meant to sexually arouse someone or otherwise involves a shameful or morbid interest in sex. As the works in question involve stories of molestation, it can be deemed the content was intended to appeal to prurient interests. The community standards specific to Donora, Pennsylvania do not offer any unusual expectations that would result in this section of the Miller test not being passed.

The second part of the Miller test says that: “The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Patently offensive is used to describe content featuring hard-core sexual conduct, that is, ultimate sex acts such as masturbation or lewd exhibition of the genitals, even if simulated. Also, under the definition of patently offensive, a certain “floor” must be met. The floor refers to a baseline for what determines what counts as hard-core sexual conduct based upon national standards, so that unusual community standards cannot skew the expected decision of the case. The content in question is hard-core sexual conduct based on national standards and so it also passes this portion of the Miller test.

The third part of the Miller test says that: “The work lacks serious literary, artistic, political, or scientific value.” This content does not contain any serious literary, artistic, political, or scientific value and any arguments made in support of the content not being obscene based on these attributes are highly likely to be rejected by both community and national standards.

As the Miller test is an absolute test, all three portions of the test must be passed in order for material to be deemed obscene. The content in question does pass all three portions of the test which makes it legally obscene. The original conviction will be upheld on appeal.

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