"The Karen Fletcher case is an anomaly," attorney Larry Walters of Weston, Garrou, DeWitt and Walters told AVN Online. "We've not seen a text-only-based obscenity case since the Supreme Court invented the modern Miller Test for obscenity in 1973."
Since the Supreme Court's 1973 declaration that images were not essential to obscenity, courts have overturned or blocked convictions linked to books without illustrations on the grounds that sexual images have a far stronger impact than words alone.
"That says something about the viability of these charges," Walters said. "Generally, prosecutors are much more concerned with actual depictions of human beings engaged in some sort of sexual behavior, rather than the thoughts of one individual's writings."
Among the charges against Fletcher is commercial involvement with obscenity for charging $10 to join her group. The case came to the attention of the Department of Justice after a "Suspicious Activity Report" was filed by a representative of PayPal, a secure-payment service Fletcher's website uses.
"This is the only report we've seen of PayPal actually making a decision on the legality of a website's content and submitting a report to the government as a result," Walters said. "There could be others, however, that were never acted upon."
According to Walters, "the line for obscenity should be drawn at text itself."
"Mere words should never be found obscene," he said. "Otherwise, we're getting uncomfortably close to thought control. ... One can stop reading before being offended by a particular book or story. However, the same is not always true of a movie or magazine. With some images, the viewer is affected before he or she can voluntarily decide whether to consume the content or not.
"We've submitted expert testimony confirming the psychologically different effect that words have on the reader, as compared to pictures. This will continue to be an issue throughout the trial."
A trial date is tentatively set for some time in April of 2008.