As many of you no doubt have read, a federal appeals court has refused to grant the petition for rehearing in the Dwight Whorley case. Whorley had been convicted of possessing child porn, receiving obscene manga and sending obscene email.
The court ruled 10-1 against rehearing the case, but the focus of attention has been the lengthy dissent, in which Judge Roger Gregory urged Whorley to take the case to Supreme Court. Among other things, Gregory argues that Whorley’s conviction violated the First Amendment insofar as it punished speech pertaining to “imaginary children.”
Judge Gregory’s may have struck a chord in the comics & manga communities, but odds are that it will not make a similar impression on a majority of Supreme Court Justices, let alone appellate judges in his or any other federal circuit. The Court established years ago that fiction and drawings can be obscene. There is no split among the federal circuits regarding that issue, and the Supreme Court is not likely to view protecting pornographic depictions of children as a compelling reason to overturn decades of established obscenity jurisprudence.
Anti-censorship advocates, including Judge Gregory, have been wont to quote passages from the 2002 Ashcroft v. Free Speech Coalition decision regarding the unconstitutionality of banning virtual images, but these passages don’t prove what people think they do. In short, the quotes are being taken out of context–the Aschroft case dealt with a statute that banned virtual images regardless of whether they were obscene, a constitutional problem that current law arguably corrects.
There are equally substantive issues with Judge Gregory’s argument that obscenity communicated over the Internet should be regarded as personal, akin to private thoughts or matter read in one’s home, rather than connected to interstate commerce and thus a legitimate subject of federal law. This blog is not the place for an extensive analysis of Commerce Clause jurisprudence and the regulation of electronic communications, but suffice it to say that for Whorley to prevail on this point, the Supreme Court would essentially be nullifying precedent that provides the basis for much of Congress’s present legislative authority, let alone analogous principles that have enabled Congress to regulate obscenity sent by mail or through Customs.
Still, if people want to file appeals claiming that the Internet is intrinsically private or that images of fictional children cannot be obscene, that’s their right–it is, after all, a free country, at least in regard to the freedom to pay lawyers to make quixotic arguments.