Despite recent obscenity cases involving video store owners and strip club operators, attorney Howard J. Bashman says the government is also going against those whose writings are deemed obscene.
In a commentary written on Law.com Web site, Bashman, a Pennsylvania-based attorney, says last month’s story on the Pittsburgh Post-Gazette about a woman who was indicted on six obscenity counts for writing a story online about the rape and murder of children is perhaps the latest effort by the government to crack down on obscene material that is written.
But unlike other obscenity cases, the woman was charged with merely violating the law through her writings and not through photos or other images.
The cases comes at about the same time that a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld unanimously a federal criminal conviction based on a jury’s finding that a defendant left offensive voicemail messages consisting of words that categorized as spoken obscenities, Bashman wrote. The panel’s opinion reproduces the offending spoken message in detail, proving that what is criminally obscene when spoken as a voicemail message may not be obscene when expressed as part an appellate court’s discussion relating to the evidence.
Bashman said that while a person may still not be prosecuted merely for thinking bad thoughts, there are some exceptions to the notion that the First Amendment automatically protects a person’s use of written language. One exception is the “true threat” exception, under which a person can be prosecuted for making a real threat to another person’s safety.
Another appellate court ruling also upholds the prosecution of those whose writings are deemed obscene, Bashman said. Under the U.S. Supreme Court’s precedent in Miller v. California, obscene written material is defined by “whether the work depicts or describes, in a patently offensive way, sexual conduct.” According to the quote, “depicts” refers to visual communication, such as photos, film and video, while “describes” also refers to written expression.
But Bashman cautioned that while thinking obscene thoughts may not subject anyone to punishment, the writing of obscene thoughts is still subject to criminal liability, the First Amendment notwithstanding.
