Posted on 06/26/2009 12:09:22 AM PDT by Maelstorm
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. Gregory says feds trying to control thoughts
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.
The judge never said there was nothing wrong with what he was doing. The thing that a civil libertarian might be worried about is that a person later could be jailed for downloading or sending material that might be considered “obscene” by some jury or judge but is not something illegal. What if you decide to send an e-mail to your wife/husband and include a detailed sexual fantasy you want to live out when vacation time comes along? By accident, you mistype your loved one’s e-mail address and it goes to an unintended recipient — and they file charges using this case as a precident? That’s something to worry about I think.
I agree.
Futile wastage on victimless crimes.
It doesn't even have to go that far. She could bring her computer in for repair and the tech just "happens" to see her emails. The email was intended for her. It went to nobody else, but since she was in possession of it, she is charged.
Cheers!
This guy was in high school with me.
Couldn't agree more. And people who go into the schools to teach tolerance of the gay lifestyle to little children should be sent to prison.
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