You Aren't as Free as You Think - Your Private Emails Can Land You in Jail

In the latest case involving the absurd and unconstitutional obscenity statutes, the Fourth Circuit has upheld a conviction of a man for mere private possession of allegedly obscene material. See United States v. Whorley, __F.3d__ (4th Cir. 2008). While the facts may not fit any conduct in which you might engage, the logic could very well ensnare you one day.

Read on. You should be outraged.


The facts of the case are this: Mr. Whorley was using a computer at the Virginia Employment Commission (Virginia's unemployment bureau). Apparently, Mr. Whorley was not looking for a job, but downloading anime porn cartoons from his Yahoo email account. An employee of the Commission caught him, and booted him from the premises. Mr. Whorley he apparently forgot to log out of his account, so the employees clicked on a few of his email messages and printed them out for police. See Op. at 4.

Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. § 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. § 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. § 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors. Op. at 4-5

Lets just agree that Mr. Whorley is not the most sympathetic character. He was on probation for child porn charges in 1999. Additionally, he appears to have frequented forums for questionable material, and is reported to have been searching for terms such as "child sex play." I'm not playing a violin for Mr. Whorley. Nevertheless, when we allow cases like this one to be decided based upon the status of the defendant, all of our constitutional rights are burned under the flame of hatred for sexual deviants.

You can Possess any Materials You Want - But that Doesn't Mean that You Can Receive Them

Whorley challenged the constitutionality of 18 U.S.C. § 1462 because "it makes no exception for the pri- vate receipt, possession, or viewing of obscene material." He argued that Stanley v. Georgia, 394 U.S. 557 (1969) renders any laws that criminalize the mere possession of obscenity unconstitutional.

“If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Stanley v. Georgia at 568.
Section 1462 provides:
Whoever brings into the United States . . . or knowingly uses any express company or other common carrier or interactive computer service . . . for carriage in interstate or foreign commerce (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or * * * Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service . . . any matter or thing the carriage or importation of which is herein made unlawful Shall be fined under this title or imprisoned not more than five years . . .
And the Fourth Circuit held that Stanley v. Georgia might have said that a person may possess obscene material in the privacy of his or her own home, but that right did not mean that the person has a right to receive such materials. The Fourth Circuit did not hack this constitutional Catch-22 out of whole cloth. Rather, the Fourth relied upon a string of cases supporting this illogical result.
See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley’s recognition of the defendant’s right to possess obscenity meant that "someone must have the right to deliver it to him" through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) ("Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley’s tolerance of obscenity within the privacy of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce"). (Op. at 7)

So kids, get out your pencils and note pads. Under Stanley v. Georgia, you can possess obscene materials all you like, in the privacy of your own home. While the First Amendment recognizes this fact and provides that the government can never tell you what you can read or watch in your own home, you can't actually get those books or pictures from other people, carry them in your pocket, or send them to anyone else.

Cartoons and Text Can be Legally "Obscene"

Under Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.
Under this test, it seems like a constitutional impossibility that the written word or drawn cartoons could be legally "obscene." If something is written or drawn, it would seem to be imbued with "literary or artistic value." Even if it had none, rendering private correspondence between two people "obscene" seems to fly in the face of everything that the First Amendment stands for. Nevertheless, the majority in U.S. v. Whorley not only disagreed with Mr. Whorley, but seemed to be downright flippant about it:
In essence, Whorley argues that text, standing alone, may not constitutionally be prohibited as obscene. He never explains why, however, nor does he cite any authority for his argument. Indeed, he overlooks the traditional formulations of obscenity, which have never depended on the form or medium of expression. (Op. at 12)

The Court's attitude can be somewhat excused if Mr. Whorley's attorney truly did fail to cite a single bit of authority in his support -- especially in light of Kaplan v. California, 413 U.S. 115 (1973) which says that the medium is not relevant to the obscenity analysis.

The Virtual Child Porn Case Doesn't Mean What You Think

Right after I was in law school, the big First Amendment issue of the day was Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). That case struck down a law prohibiting "virtual child porn," as violative of the First Amendment. Ashcroft v. FSC held that if an image was not of an actual child, then it was not child porn. However, the language of that decision said that the government could not criminalize images that were neither obscene nor involving actual children. Congress reacted to this case by passing the PROTECT Act of 2003, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680-82 (2003) -- which makes it illegal to possess, sell, distribute, "sexually explicit drawings, cartoons, sculptures, or paintings that A) depict minors engaging in sexually explicit conduct, *and* are obscene. "It is not a required element of any offense under this section that the minor depicted actually exist. " 18 U.S.C. § 1466A(a), (c).

Procedural Issues

Although I wish to keep this post limited to the free speech issues in this case, some procedural matters are worth mentioning. Whorley objected to the search of his email as a violation of his Fourth Amendment rights -- but his objection came too late to help him. More importantly, he challenged the objectivity of the trial judge since he was a member chairman of the Meese Commission:

Whorley contends that the district judge, who in 1986 chaired the Federal Attorney General’s Commission on Pornography while serving as a Commonwealth’s Attorney for Virginia, abused his discretion in denying Whorley’s motion that the judge recuse himself. The district judge denied the motion as untimely. (Op. at 19)
This certainly seems to be an awfully flippant dismissal of the accused's rights. However, the opinion makes it clear that during arraignment, the judge advised Mr. Whorley's attorney that he chaired the Meese Commission and directly asked him whether he would seek recusal.
Whorley’s counsel subsequently notified the court that Whorley did not intend to request recusal. But then, on the last business day before trial, some seven months after Whorley’s arraignment, Whorley filed the motion to recuse.



Like I said above, Mr. Whorley isn't the most sympathetic defendant, and from the looks of it, his attorney was not exactly on his "A game" in this case. Unfortunately, this is how our freedoms are lost, little piece by little piece. An unsympathetic defendant here, an inexperienced lawyer there, and then all of a sudden we all find ourselves surrounded by walls that were built by Meese Commission chairmen turned judge along with fringe defendants and bumbling attorneys with no experience in these kinds of cases. And then what? Then you send a sexually-charged email to your girlfriend or boyfriend. Or your college buddy sends you Tubgirl or Meatspin as a gag. Someone who doesn't like you finds it. You happen to be on the local prosecutor's shit list for some reason - or maybe he just came from a sermon by his Southern Baptist preacher that "obscenitah must be stamped out." Or maybe the cops come to your house to check out a noise complaint and just see it up on the screen. You give them a little attitude. You're hauled off and charged with violating the obscenity laws.

You know what? The logic in this case fits your scenario perfectly, and you are now a criminal.


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