Posted by Eugene Volokh:
Obscenity Conviction for Adult-to-Adult Noncommercial E-mail About (Fantasy)
Sex With Children:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245192215
I blogged last December about the Fourth Circuit opinion ([1]U.S. v.
Whorley) upholding this conviction; yesterday, the Fourth Circuit
[2]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.
([3]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.
([4]Hide most of the above text.)
References
1. http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229637209
2. http://pacer.ca4.uscourts.gov/opinion.pdf/064288R1.P.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1245192215.html
4. file://localhost/var/www/powerblogs/volokh/posts/1245192215.html
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