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Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy) Sex With Children:

I blogged last December about the Fourth Circuit opinion (U.S. v. Whorley) upholding this conviction; yesterday, the Fourth Circuit denied rehearing en banc, with only one vote in favor of en banc review -- that of Judge Gregory, who dissented from the panel opinion. Here's most of his dissent from the denial of rehearing; I think the majority have the better view of the matter under existing First Amendment precedents, and I doubt that the Supreme Court will agree to hear the case to revisit or limit those precedents, but I thought the argument was nonetheless worth noting:

Dwight Whorley was convicted on twenty counts of violating [the federal ban on transporting obscenity in interstate commerce] for communicating by e-mail with consenting adults about their personal and private fantasies. The offending e-mails were purely textual and did not include any images. They implicated no commercial interest and, although the e-mails described fantasies about sexual conduct involving children, the children referred to were imagined, not real. It is undisputed that the e-mails did not involve any victimization or exploitation of actual children....

This is a difficult case. The e-mails were admittedly transmitted and received through channels of interstate commerce and were found by a jury to be obscene under the obscenity test laid out in Miller v. California (1973). One might say that this absolves us of the need to look any further into the potential constitutional harms inflicted by the application of 18 U.S.C. ยง 1462 to Whorley's conduct. Haven't we long said, after all, that the First Amendment does not protect obscenity? Yet, "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end." Ashcroft v. Free Speech Coalition (2002). I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.

ruuffles (mail) (www):
As Justice Black said, "No law means no law!" What are the current members views on text-based obscenity?
6.16.2009 6:52pm
Monty:
As much as I agree with Justice Black, and as much as I disagree with out current obscentity jurisprudence, I can't really disagree with the laws that criminalize distrobution of actual child pornography.
6.16.2009 7:10pm
ruuffles (mail) (www):

I can't really disagree with the laws that criminalize distrobution of actual child pornography.

Like most of these kinds of cases, the defendant was sending both child pornography and text-based obscenity.
6.16.2009 7:13pm
ruuffles (mail) (www):
The dissent was from his conviction of the latter.
6.16.2009 7:13pm
interruptus:
I don't think any of the current members have had an opportunity to make a strong statement on obscenity, since nothing of fundamental import has been decided since 1973's Miller. I would hope, perhaps naively, that Thomas at least would vote to reverse here: it seems inconceivable that an originalist analysis could conclude that the federal government may criminalize the content of an individual's private correspondence, sent to another individual who had no objections to receiving it. (Using it as evidence of another crime, such as conspiracy to commit murder, is another matter.) Indeed I can think of fewer things that would be seen as more objectionable at the founding than that sort of moralistic nanny-state intrusion into one's private letters.

A judge more worried about precedent would probably have to uphold the strong chain of obscenity precedents, though, adventure in raw judicial activism though they were.
6.16.2009 7:15pm
Steve:
I always thought virtual child porn would prove to be the difficult case in this area. That case having now been resolved, it's hard for me to see how the question in this case is any more difficult to sort out.
6.16.2009 7:20pm
ruuffles (mail) (www):

it's hard for me to see how the question in this case is any more difficult to sort out.

It's not. The written word in those e-mails are the purest form of "speech," as they are pure fantasy. I don't see any other argument other than puritanical ones to exclude it from 1st amendment protection.
6.16.2009 7:24pm
Suggestion (mail):
The real problems are our inane Commerce Clause jurisprudence (the product of a fearful and ignorant zeitgeist existing in the 30s) and obscenity jurisprudence.

How on earth did we arrive at the point where Congress can regulate anything - even non commercial activity - because it passes through the "channels" of commerce?

The commerce clause should be vigorously used to ensure efficient commercial transactions across state lines. Prohibit intrastate protectionism ( which is irrational) etc. The CC should NOT be a blank check.
6.16.2009 7:59pm
Anderson (mail):
One imagines a "therapy site" where enthusiasts for sex with children are encouraged to post their fantasies, on the hypothesis that fantasy expression gratifies the desire sufficiently to ward off any real-world experiments.

Say you get a Ph.D. or an M.D. to sign off on the site's allegedly therapeutic effects. Of course, the posts are public for all to read. (Comment threads would be unwise, I suspect.)

-- Obscene? For a jury to decide?
6.16.2009 8:29pm
Dave N (mail):
I think Ruufles identified the real problem with this case. The defendant is unsympathetic because of the actual kiddie porn in the other counts.

But words describing fantasy, no matter how sick or vile, should be protected. We don't have to, nor should we, condone the fantasy--but we don't need to criminalize it, either.
6.16.2009 8:32pm
Tony Tutins (mail):
Die Gedanken sind frei,
Wer kann sie erraten,
Sie fliehen vorbei,
Wie naechtliche Schatten.
Kein Mensch kann sie wissen,
Kein Jaeger erschiessen
Mit Pulver und Blei.
Die Gedanken sind frei!

Until you email them.

No children were harmed in the composition of this message.
6.16.2009 8:35pm
BMGF:
So ... Ashcroft vs Free Speech Coalition is now totally dead?
6.16.2009 8:43pm
Steve:
Based on a Fourth Circuit decision? That's not how it works.
6.16.2009 8:45pm
methodact:
Judge Gregory posits impetus for a baby step in correcting the injustice of thought crimes. EV, your very example belies the ruse about these laws protecting real victims. That's all it ever was, a ruse, otherwise writings and computer-generated graphics and drawings, never would have been proscribed in much of the hysterical legislation to come down the pike, as yet overturned, or not.

We don't need baby steps to correct this injust body-of-law, which is really a religious masquerade, especially since Millimeter Wave Scanners are slated to be used on children in airports and are being pushed for use on kids in shopping malls and in schools and with laws making it a crime for parents to yell at their kids, even at home, which is easy to see is to lay the groundwork for government cameras in kid's bedrooms, eventually.

We need more than a meat axe approach to these terrible laws that violate the Contitution, we need a battle axe to cut through that Gordian Knot.

So given the outrageous turn of the case blogged about in this post, and to revisit the issue of the need for the quality of empathy in our judges, it should be clear by now that we can ill-afford any more depraved-heart judges such as those that already occupy the bench.
6.16.2009 8:58pm
John (mail):
Has anyone made a freedom of assembly argument as to these group emails?
6.16.2009 9:17pm
Joe McDermott (mail):
Further to Anderson's suggestion, what if the emails were sent only to the defendant's therapist, at his request and as part of a course of treatment?
6.16.2009 9:23pm
ChrisTS (mail):
Suggestion:

I do see your complaint about the CC, but I don't think that is the root problem in cases like these. Rather, it is our own deeply confused social thinking about what is causally efficacious and what is not - especially in the context of sexual inclinations.

The terror of child-abuse has prompted too many people to assume that even thinking about sex with children is a proximate cause of actual abuse of [real] children.

As a parent, I kind of get the fear, but convicting someone of a fairly serious offense because he shared his fantasies just seems over the edge. (Yes, I know: he had done 'more,' and that conviction is fine with me.)
6.16.2009 9:41pm
ChrisTS (mail):
On a lighter note, I don't think his name helped.
6.16.2009 9:42pm
Dave N (mail):
ChrisTS,

True--but most people with that name pronounce the "W" so that it doesn't sound like the other word.
6.16.2009 9:55pm
pintler:
Where is the line where unacceptable thoughts become crimes? When you think them? Speak them? Write them down? Share them with others?
6.16.2009 10:12pm
BMGF:

Where is the line where unacceptable thoughts become crimes? When you think them? Speak them? Write them down? Share them with others?


You're not supposed to think. The government does that for you.
6.16.2009 10:18pm
methodact:
Yep. That is why the First Amendment was written in absolute language. Because otherwise, government encroachment on freedom and liberties never ceases.

By now, many people are content to think, feel, believe and say what they are told, having forfeited their own consciousness to government, and having had it supplanted with government's carefully scientifically developed programming, but it spills over into all areas of life eventually.

Thought crimes cannot be limited to this arbitrarily constructed taboo only, government expands its totalitarian reach to all aspects of human existence, eventually, as technology permits it.
6.16.2009 10:38pm
Desiderius:
Suggestion,

"The CC should NOT be a blank check."

So what's your plan for rounding up support for this proposition? I'm game.
6.16.2009 10:48pm
ChrisTS (mail):
Dave N):
ChrisTS,
True--but most people with that name pronounce the "W" so that it doesn't sound like the other word.


I am SO not going there.
6.17.2009 12:07am
interruptus:

So what's your plan for rounding up support for this proposition? I'm game.

Chipping away at it seems to be the best bet, but I fear that post-Raich, the best opportunity has passed. Had Scalia and Kennedy been persuadable to join O'Connor's position rather than Stevens's, things would be on a significantly better trajectory than they are now.
6.17.2009 12:08am
theobromophile (www):
Further to Anderson's suggestion, what if the emails were sent only to the defendant's therapist, at his request and as part of a course of treatment?

Further to these two suggestions, I'll be the one with the dirty mind: what if he sent these fantasies to his wife, who would use such fantasies to dress up and role-play with him? Wouldn't that at least be protected under Lawrence v. Texas?
6.17.2009 12:15am
theobromophile (www):
That aside, it's sad when "privacy" jurisprudence (that which emanates from the penumbras of the Constitution...) provides more protection for free speech than does the First Amendment.

As a moral matter, I would absolutely understand the religious prohibition on "thought crimes": when you sin in your mind, you lead the way to making it acceptable, and, once it fails to shock you, you may do it in real life. The government, however, is not our supreme ruler who commands us to be as close to sinless as possible; it is a structure that exists for our benefit.
6.17.2009 12:39am
ReaderY:
As the courts and particularly the 4th Circuit have defined the matter, interstate commerce is, by definition, not private. The two zones are mutually exclusive.

Nor does the internet make a difference. An email isn't fundamentally different in character from transporting personal film for private use, which the Supreme Court in U.S. v. 12 200' Reels of Super Eight mm Film found could constitutionally be prohibited and distinguished from possession in a private home.

The situation is analogous to Lovisi v. Slayton, a 1970s case in which the 4th Circuit upheld a conviction and two-year prison sentence of a married couple for performing sodomy on each other. The couple had advertised in a swinger's magazine and brought a third party in to watch them. The 4th Circuit held that acts performed in the invited presence of others are not private and the then-existing privacy exception for married couples did not apply. The 4th Circuit appears to be giving the exception to obscenity laws for private possession of obcene material within a home a similarly narrow definition of the concepts of "private" and "within a home" -- and an email, by this definition, is neither.
6.17.2009 12:45am
Steve:
But isn't the distinction pure speech vs. conduct?
6.17.2009 12:53am
Allan Walstad (mail):
There is no private realm. At last, the beneficent feds are everywhere. Totalitarianism, anyone?

Plus what "Suggestion" said 5 hours and 17 minutes ago.
6.17.2009 1:12am
methodact:
"Federal courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law or merely giving advice about the potential legal deficiencies of a law or policy when no ongoing controversy exists with respect to that law or policy." -- Fourth Circuit Chief Judge Karen J. Williams
I'll say they are not philosopher-kings.

Lord Acton knew:
"Power corrupts, and absolute power corrupts absolutely":

"Liberty is not a means to a higher political end. It is itself the highest political end."

"Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."
What can be done, especially post Raich that turned the CC into a one-size-fits-all monster?

While they are already purging the Internet of much of its content, I was able to revisit a Google cache of this for some starting source ideas.

The short version is that we have to go outside of the system to fix them.
6.17.2009 1:22am
David Schwartz (mail):
I cannot wrap my brain around how virtual visual child porn can be protected by the first amendment but obscene fantasy text child porn can be prohibited. If that's what the law says, the law is an ass.
6.17.2009 1:30am
Mike McDougal:
Protect our impressionable text!
6.17.2009 2:32am
whit:

This is a difficult case


no, it's not.

it's ridiculously simple.

the fact that somebody can be prosecuted, let alone successfully for talking about sexual fantasies is INSANE.

and clearly 100% dismissive of the spirit and letter of the 1st amendment.

i have a hard time accepting that this can happen in america.

the law IS an ass, if somebody's freedom can be taken away for discussin fantasy rape of a child.
6.17.2009 2:42am
DiverDan (mail):
This is really, really ridiculous. Under Lawrence v. Texas, engaging in anal sodomy with a consenting adult is constitutionally protected conduct, but communicating verbally one's sexual fantasies (even perverse fantasies) with consenting adults may be criminalized. Does anyone else here see a problem with that line of thinking?
6.17.2009 8:12am
Pedobear:
Under Lawrence v. Texas, engaging in anal sodomy with a consenting adult is constitutionally protected conduct, but communicating verbally one's sexual fantasies (even perverse fantasies) with consenting adults may be criminalized. Does anyone else here see a problem with that line of thinking?

Yes, I do.
6.17.2009 8:38am
Philistine (mail):

I cannot wrap my brain around how virtual visual child porn can be protected by the first amendment but obscene fantasy text child porn can be prohibited. If that's what the law says, the law is an ass.


Virtual visual child porn is not protected. It just isn't "child porn." It's still illegal as obscenity, and part of the conviction in this case was based on cartoon depictions of minors.
6.17.2009 9:10am
CMH:

Virtual visual child porn is not protected. It just isn't "child porn." It's still illegal as obscenity


Not quite. Virtual child porn is protected speech unless it crosses the line into obscenity. That's the whole point of Free Speech Coalition, which the challenge was focused on materials that were neither obscene (since the statute didn't require obscenity) nor child pornography (which can be banned regardless).

Anything can be banned if it meets the standard of obscenity; so in this respect, virtual child porn is subject to the same rules as any other book, movie, poem, etc.
6.17.2009 9:43am
neurodoc:
Anderson started along the lines I was thinking with his hypothetical about a "therapy" website for the psychologically troubled; Joe McDermott took it to where I was going with his modification of the hypothetical to make it direct communication with a therapist; and theobromophile added a different modification, that of a husband and wife communicating sexual fantasies (except she left out the child porno aspect, which is what criminalized Whorley's conduct).

So, what about the "therapist" scenario? Any privilege for such communication with a therapist invited or encouraged by a therapist? (Does federal law recognize this and other privileges that exist in most states? What if individual "confessing" to a priest?)

Result in Whorley would have been the same if he had been talking to others on telephone rather than by email? How about if it were a local call rather than an interstate one? How about if Whorley stood on one side of a state line and his interlocutor on the other side in another state, then he would be projecting his voice interstate and violating the law, or not a "channel of interstate commerce"?
6.17.2009 9:43am
neurodoc:
So, the take home message of Whorley is keep your perverted thoughts to yourself, especially if they involve children, or at least don't convey them by any means to someone(s) in a different state? (I live no more than a couple of hundred yards of a state line and have resolved not to risk trouble by shouting my perverted thoughts, which I hasten to say are not child-related, to anyone standing within earshot on the other side of the dividing street. But I can utter them without fear of this law on my side of the state line so long as they can't be heard on the other side, right?)
6.17.2009 9:53am
geokstr (mail):
Well, we've already got "hate" crime, "abusive language with your kids" crime, soon we'll have "speech that offends" crime. Can "thought" crime be far behind?

Mind-Reading Tech May Not Be Far Off

I just hope there's a Minority Report provision in the legislation.
6.17.2009 9:56am
ShelbyC:

As the courts and particularly the 4th Circuit have defined the matter, interstate commerce is, by definition, not private. The two zones are mutually exclusive.


That sounds kinda funny. How does that pertain to things like abortion and contraception, which typically involve interstate commerce? Not to mention the sex at issue in Lawrence, which is probably commercial under wickard?
6.17.2009 10:09am
ruuffles (mail) (www):

So, the take home message of Whorley is keep your perverted thoughts to yourself, especially if they involve children, or at least don't convey them by any means to someone(s) in a different state?

No, these kinds of fantasy texts are available on very public websites (read: not underground child porn type sites). The take home message is, unless some administration decides to considerably ramp up (a surge if you will) the war on pornography, you'll be left alone as long as you don't also deal in child pornography.
6.17.2009 10:12am
Anderson (mail):
So, what about the "therapist" scenario?

We are writing Prof. Volokh's next First Amendment exam for him!
6.17.2009 11:22am
Preferred Customer:
I'd think you'd have a good argument that messages sent in the context of therapy wouldn't fit the definition of obscenity under Miller, no?
6.17.2009 11:44am
einhverfr (mail) (www):
I think this case shows how pernicious the obscenity exception to the first amendment is. It gives folks a right to avoid material they find sexually offensive.

Why is prurient sex different from hate speech? Why are textual depictions of rape of children more subject to regulation than advocacy of genocide?
6.17.2009 12:08pm
einhverfr (mail) (www):
Also, regarding hate speech, it is worth reading Justice Steven's dissent in the main flag burning cases and ask whether his dissent (arguing that desecration of the flag may be regulated) is fundamentally different from the majority's holding in Miller.
6.17.2009 12:28pm
Granite26:
Isn't there a Constitutional Convention push for an amendment to clarify the commerce clause?

Maybe someone should start a website and collecting web signatures to support calling the state conventions?

Prolly won't happen that way, but enough buzz could be a credible threat.
6.17.2009 1:12pm
methodact:
"you'll be left alone as long as ..."
Hahahahahahahahahahahaha

No. You won't. That is how the usurpers get away with liberticide - incrementalism, (at least until their control grid is completely in place). I described it here, where they had said they were only going to keep the National Endowment for the Arts from funding pornography, but that was it.

A familiar apologist then took umbrage with all of my points then. But I know, I attended some of the New World Order's international conferences on this topic last millenia and I know what they planned to do then and isn't to simply wall off a few Constitutional Rights and then stop.
6.17.2009 1:14pm
Sargent (mail):
Clearly, if you want to communicate your child-sex fantasies to another adult, it's wiser to photoshop them than write them out.
6.17.2009 4:08pm
neurodoc:
neurodoc: So, what about the "therapist" scenario?

Anderson: We are writing Prof. Volokh's next First Amendment exam for him!
Professor Volokh has been generous enough in sharing with us that we shouldn't mind helping him with his need for exam questions. :)
6.17.2009 4:51pm
htom (mail):

I must not fear.
Fear is the mind-killer.
Fear is the little-death that brings total obliteration.
I will face my fear.
I will permit it to pass over me and through me.
And when it has gone past I will turn the inner eye to see its path.
Where the fear has gone there will be nothing.
Only I will remain.


-- Bene Gesserit litany against fear, Frank Herbert

It looks to me like some have not passed the test of being human.
6.17.2009 4:55pm
neurodoc:
Preferred Customer: I'd think you'd have a good argument that messages sent in the context of therapy wouldn't fit the definition of obscenity under Miller, no?

Which prong of Miller do you think it wouldn't satisfy, the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific one, that is whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value? The therapeutic element would give it "scientific value"? Or the first prong, with the therapist seen as one among a "community" of therapists who ought not take a prurient interest in the pedophilic fantasies of the speaker?
ruufles: The take home message is, unless some administration decides to considerably ramp up (a surge if you will) the war on pornography, you'll be left alone as long as you don't also deal in child pornography.
So, might be subject to criminal prosecution, but not likely to be prosecuted unless actually dealing in child pornography, in which case prosecutor will bring the additional charges?
6.17.2009 5:07pm
Leo Marvin (mail):
I guess I'm confused why so many libertarians seem less troubled by conservatives who encroach on the First Amendment than by liberals who encroach on the Second.
6.17.2009 7:48pm
Desiderius:
interruptus,

"Chipping away at it seems to be the best bet, but I fear that post-Raich, the best opportunity has passed. Had Scalia and Kennedy been persuadable to join O'Connor's position rather than Stevens's, things would be on a significantly better trajectory than they are now."

In the present environment, could you be looking under the wrong rock? This case particularly could be the source of some opposition to CC abuse from the Civil Liberties left, as LM notes.
6.17.2009 7:55pm
Desiderius:
It's not like the Left in this country has never supported limited government.
6.17.2009 7:56pm
redacted:
The take home message is, unless some administration decides to considerably ramp up (a surge if you will) the war on pornography, you'll be left alone as long as you don't also deal in child pornography.


U.S. Manga Obscenity Conviction Roils Comics World by David Kravets, Wired, May 28, 2009:
In an obscenity first, a U.S. comic book collector has pleaded guilty to importing and possessing Japanese manga books depicting illustrations of child sex abuse and bestiality.

[...]

Handley's guilty plea makes him the first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.

[...]
6.18.2009 1:17pm

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