By Justin Silverman

Virginia state employees approached Dwight Whorley five years ago as he stood in front of an employment center printer with papers in his hand. A woman in the center spotted Whorley earlier looking at what appeared to be child pornography. The employees asked Whorley to see the papers he held. They were Japanese anime-style cartoon depictions of children having sex with adults. He received them by using one of the center’s computers. When authorities searched the computer, they found that Whorley also emailed acquaintances sharing with them his fantasies of sex with children.

The encounter led to a conviction not for child pornography — no kids involved here, just cartoons and make-believe — but for obscenity under 18 USC §1462. Under the statute, anyone who knowingly uses a computer to receive any obscene material, including both pictures and writing, can be imprisoned. Obscenity convictions are relatively rare as the content in question must lack any serious literary, artistic, political or scientific value. It can be argued that cartoons and writing always contain at least some degree of artistic value. There is a creative element to them afterall and they should not be considered obscene. The court in U.S. v. Whorley disagreed, a 4th Circuit Court of Appeals affirmed, and this week,that same court refused to rehear the case.

While the trial court seems to have applied the law correctly, the implications of the ruling make many First Amendment stalwarts uncomfortable. Under U.S. v. Whorley, anyone receiving an email with potentially obscene material or simply viewing it online can be imprisoned. Further, anyone who writes of their sexual fantasies, or even depicts them in a novel, runs the risk of imprisonment if a jury finds the words to be obscene.

Obscenity is unprotected speech and can be regulated, as seen in Whorley. Before a defendant can be convicted under an obscenity law, it must first be determined that the material in question is in fact obscene. A jury determines this by answering a three-part test developed in Miller v. California 413 U.S. 15 (1973):

  1. Would “the average person, applying contemporary community standards” find that the work, taken as a whole, appeals to the prurient interest?
  2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by an applicable state law?
  3. Does the work, taken as a whole, lacks serious literary, artistic, political, or scientific value?

The Whorley court found that the cartoons and the emails were in fact obscene, which should leave artists and writers nervous. Karen Fletcher, a writer, plead guilty in September 2006 to charges under 18 USC §1462, the same statute used against Whorley. Fletcher posted stories on her website, depicting the torture, sexual molestation and murder of fictional children. Afraid of a public trial, she accepted a 60-month probation, six months of home detention and fines. At that time, the government had never won a conviction based solely on text under the obscenity law.

Put aside any personal judgement against Whorley and consider the following: The cartoons he possessed, as well as the emails he wrote, involved no victims. This is an important distinction because it played a role in Ashcroft v. The Free Speech Coalition 535 US 234 (2002). The court in that case ruled that “virtual child porn” could not be considered child pornography because it doesn’t involve children and a result, no harm had been suffered by them. New York v. Ferber 52 NY2d 674 (1982) is the case that distinguished child pornography from obscenity and upheld a ban on its possession to prevent markets from forming and to remove financial incentives to create such material. There are parallels here with Whorley as the cartoons and emails did not involve actual children and the emails had no commercial function. They were just part of a personal correspondence.

With these considerations it seems that the government can use an obscenity statute to stifle any sexual speech it deems inappropriate regardless of the harm its causes. In his dissent, Judge Gregory said, “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.”

It’s a thought well worth considering.