The two motions to dismiss presented a strict scrutiny argument and said obscenity laws should not be applied to text where no pictures were involved. Walters said there hasn't been a case that has applied obscenity laws to text since the U.S. Supreme Court refined the test for obscenity in its 1973 case Miller v. California.The legal standards in Miller are more than a little squishy (as most Supreme Court tests are). I am not sure if obscenity has been defined as visual media only, i.e. pictures, video, etc., exempting text. I don't think the bar for literary value is very high, but there is a problem.
The three-pronged Miller test requires that an average person using contemporary community standards would find that the work only appeals to prurient interests, that it depicts sexual conduct as defined by state law and that it lacks "serious literary, artistic, political or scientific value," according to court documents.
Walters said Conti denied his motions to dismiss based on a 2005 ruling by the 3rd U.S. Circuit Court of Appeals in U.S. v. Extreme Associates Inc.
Apparently these stories by teh defendant depict in words the kidnap and rape of under age characters. But what makes that different from any other work for fiction that depicts the kidnap and rape of characters--the mere fact that one character is underage. We are talking about fictional characters here not real live persons. Posting of pictures or video would probably not pass muster, but have we really gone so far down the high horse morality that we are now offended by mere words?