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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.

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