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. § 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.

(Show the rest of Judge Gregory's dissent from denial of rehearing en banc.)

In Stanley v. Georgia (1969), the Supreme Court extended First Amendment protections to the possession of obscene materials in the privacy of one's home. Since then, our obscenity jurisprudence has not allowed Stanley to reach much beyond its facts. As the panel opinion notes, the Supreme Court "has repeatedly rejected the notion ... that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative 'right to receive' obscene materials." Yet, I am aware of no case that, in limiting Stanley, deals with circumstances like this where the sending or receiving of the obscene materials involves neither a commercial transaction nor any kind of victim. In fact, I have difficulty seeing what interest the government could possibly have in regulating this particular conduct of Whorley's other than some sort of "indirect harm" theory of the type rejected by the Supreme Court in Free Speech Coalition.

In that case, the Court considered the constitutionality of a definition of "child pornography" in the Child Pornography Prevention Act of 1996 that would have covered "a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means." Noting the clear state interest in prohibiting the production or distribution of images that "are themselves the product of child sexual abuse," the Court could identify no similar interest in regulating "virtual child pornography" since it "creates no victims by its production." The Court then rejected the Government's claim that this kind of pornography can indirectly cause harm by creating "some unquantified potential for subsequent criminal acts." The Court found that "[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it .... [because] [t]he government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.'"

Similarly, here, I see no interest in regulating the sending of private e-mail fantasies about imaginary children beyond the perceived desirability of censoring these kinds of thoughts. Free Speech Coalition makes clear that the First Amendment protects against this kind of censorship premised on speculative and indirect theories of harm.

One might argue that this case is distinguishable from Free Speech Coalition because here we are dealing with material that has been found obscene and thus is not entitled to any First Amendment protections to begin with. But, as the Supreme Court recognized in Stanley, while "the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity[,] .... the assertion of that interest, cannot, in every context, be insulated from all constitutional protections." Free Speech Coalition and Stanley, taken together, stand for the proposition that when the government's only interest in regulating obscenity is to protect people from their own thoughts or to censor thoughts that have an unquantifiable potential to induce future bad acts, the First Amendment shelters individuals from this kind of state intrusion on their personal privacy. "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds ." Stanley; cf. United States v. Reidel, (1971) (suggesting in reversing dismissal of indictment for mailing obscene circulars that the case might be different if defendant had "complaints about governmental violations of his private thoughts or fantasies").

The Supreme Court has long recognized that "constitutionally protected expression ... is often separated from obscenity only by a dim and uncertain line" and thus we must be careful that "regulations of obscenity scrupulously embody the most rigorous procedural safeguards." Where the state has a legitimate interest in regulating obscene materials -- for example, where those materials are being commercially traded and/or where those materials are the product of the abuse or exploitation of their subjects -- the First Amendment's protections may not apply. But where the only articulable interest in regulation is a fear of the expression of certain kinds of thoughts, even obscenity must be given a constitutional safe harbor. "Stanley rests on the proposition that freedom from governmental manipulation of the content of a man's mind necessitates a ban on punishment for the mere possession of the memorabilia of a man's thoughts and dreams, unless that punishment can be related to a state interest of a stronger nature than the simple desire to proscribe obscenity as such." Reidel (Harlan, J., concurring).

In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case. A failure to recognize Stanley's applicability to non-commercial, private e-mail communications in which the government has no legitimate interest dangerously restricts the use of today's dominant medium for exercising freedom of speech.

The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome. This is an important and difficult case, and one that I strongly believe merits rehearing by this court sitting en banc. My colleagues apparently disagree, and I therefore urge the Appellant to seek certiorari from the Supreme Court.

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