Should publishing stories about sex crimes be treated more seriously by the law than committing those crimes in real life? It sounds like a trick question, but this is what a Texas court apparently decided, when it imposed a 40 year term of imprisonment against Thomas Arthur for the crime of obscenity, over the contents of a taboo erotic fiction website. The United States Fifth Circuit Court of Appeals is currently considering Arthur’s appeal from that 2021 conviction, following a hearing on the appeal in September.
Prostasia first broke the news of the FBI’s takedown of Arthur’s website Mister Double following a raid on his property in November 2019, and later assisted his counsel in their endeavor to secure expert witnesses to testify in Arthur’s defense.
The key to his defense was that the materials over which Arthur was charged are constitutionally protected speech, because they have serious artistic and/or scientific value, in spite of covering taboo subjects including child sexuality and abuse. Psychologist Dr David Ley was slated to testify to this effect on behalf of the defendant. But the trial judge excluded Dr Ley from giving evidence, on the basis that whether the stories and drawings were obscene was a question for the jury alone. The appeal turns on whether this decision by the trial judge was correct.
Arthur’s counsel in the appeal, Lane Haygood, explained that Dr Ley intended to “talk about how the use of erotic art and material could be used – and he had actually used it – in his treatment of people with these paraphilias, and said that this was something that was commonly accepted in the clinical psychological community."
Although stories comprised the majority of the website’s content, attention focused on the hand-drawn profile pictures that the site also contained to illustrate the authors’ profile pages. One, in particular, was described by a judge as “a person's fantasy little pen drawing of an adolescent girl reclined touching herself … like a Dürer drawing from six centuries ago.” At one point during the hearing of the appeal he asked the prosecution, "is it the government's position that any drawing on the internet of an adolescent girl masturbating is felony obscenity?” Government’s counsel replied in the affirmative.
Haygood suggested that this would lead to absurd results, since although stories and media touching on adolescent sexuality may be shocking to an average juror, they are found throughout mainstream art and literature. As he said, "the average juror may never have read Lolita; the average juror may never have read Tropic of Cancer; they may never have seen American Beauty or the Saw films or any of these other materials which are commonly viewed [and] not challenged as obscene."
The judge seemed to agree, remarking that this would mean that not only Arthur, but also the estimated two million people who had accessed his website would all be committing felony offenses. “That's rather staggering,” he said, “I mean, with child pornography [involving] real victims we're seeing aggressive prosecution of that, [but] I did not know that the government interprets these two statutes that broadly." He continued:
If I were a librarian and I heard that argument, I would go and I would pull every copy of 120 Days of Sodom off my library shelves, I would go and i would pull every copy of American Psycho, I would pull every copy of Lolita, I would pull every copy of Tropic of Cancer, I would pull every copy of Absalom Absalom, The Color Purple…"
Prostasia has previously covered the legality of real and fictional pornography under U.S. law, and in particular the case of Ashcroft v Free Speech Coalition, which held that a broad ban on simulated sexual depictions of minors was unconstitutional. As the court hearing Arthur’s appeal observed, this case:
contemplates that there must be some material which falls between actual child pornography (which everyone agrees is constitutionally able to be forbidden in the possession or production of), and obscene material featuring children. There has to be something that they call the virtual child pornography which is outside the realm of what the government can constitutionally regulate.
Arthur himself is not a sympathetic defendant, as he is accused of real-life sex crimes, though those accusations were never brought to trial. The appeal court acknowledged that the accounts of Arthur’s “double hearsay anonymous accusers” may have had a bearing on the sentence he received for his obscenity crime. Another influencing factor may have been the prosecution’s claims that subscribers to his website had criminal convictions of their own, although the appeal court acknowledged that "the vast majority of the people who used it had never had any criminal charges at all."
There is a saying among lawyers that “hard cases make bad law,” and there is no better illustration of that than this case. The appeals court drew a contrast between Arthur’s 40 year sentence and that of a former Dallas Police Officer who sold online videos purporting to depict “real rape” including that of a possible minor, yet received only a 33 month sentence. It’s hard to avoid seeing the injustice here, and are hopeful that the court will take this opportunity to correct it. If not, a terrible precedent will have been set for the criminalization of art and fiction.