Intellectual Property Law

Appeals Court Backs Prison for E-Mail Obscenity

By David Kravets

Sharing an obscene sexual fantasy over e-mail is a federal crime that enjoys no protection under the First Amendment, a federal appeals court said Monday, in a decision that drew sharp dissent from one judge and potentially set the stage for a Supreme Court appeal.

In a 10-1 decision, the 4th U.S. Circuit Court of Appeals declined to rehear the case of Dwight Whorley, a Virginia man whose  criminal trial marked two firsts for the American justice system: the first conviction for possession of obscene Japanese manga, and the first for authoring pornographic fiction and sending it over e-mail.

U.S. 4th Circuit Court of Appeals Judge Roger Gregory warns of "government regulation of private thoughts."

“Whorley violated criminal statues regulating obscenity,”  Judge Paul Niemeyer wrote for the majority, “and his convictions may not be forgiven because his conduct was prompted by his sexual fantasies.”

But in a lengthy dissent, Judge Roger Gregory urged the Supreme Court to take up the case and reverse it.

“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,” Gregory wrote.

Whorley was convicted in 2006 and sentenced to 20 years in prison, in part for possessing genuine child pornography.  But the Justice Department ? perhaps sensing a chance to smuggle bad law onto the back of an unsympathetic defendant ? also charged  Whorley for having unsavory manga under the recently-enacted Protect Act, which outlaws obscene cartoons depicting minors engaging in sexually explicit conduct.

More surprisingly, prosecutors charged him under an older statute outlawing the possession of “any obscene, lewd, lascivious or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print or other matter of indecent character” as defined by a jury. That violation was for writing out his sexual fantasies involving children, and e-mailing them to like-minded internet friends. Though Whorely is apparently a pedophile, the law applies to any obscene content.

A three-judge panel voted (.pdf) 2-1 to uphold the manga and e-mail convictions last December, with Gregory dissenting (.pdf) . The judge repeated and expanded on his dissent this week, when the full court rejected Whorley’s rehearing request.

Gregory, a President George W. Bush appointee, also argued that it was wrong to convict a man for manga art depicting children having sex. Obscenity laws, he wrote, should not apply to “images of purely imagined children.” But he was particularly alarmed over the e-mail convictions.

In 1969, the Supreme Court ruled that Americans have the right to possess obscene material in the privacy of their own homes. But trafficking in such goods through interstate commerce ? which today includes the internet ? is illegal under that ruling.

Gregory argued that the law has not kept up with technology and should be changed.

“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,” Gregory said. He added that, “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.”

Following Whorley’s conviction, federal authorities convicted an Iowa man last month of possessing manga art depicting children having sex. But unlike Whorley, the defendant did not also have any real, obscene pictures of nude children having sex.

Full post as published by Threat Level on June 17, 2009 (boomark / email).