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.
June 20th, 2009 at 8:32 am
I think it’s a shame that Handley gave up the ghost. I understand his decision but he was in a much stronger position than this guy.
From my reading, Whorley’s lawyers essentially want to argue that if Whorley had done one thing differently (downloaded lolicon at home instead of in public), that chunk of what he did would have been his right to do so.
The best they can hope for that, I would think, is a guilty verdict with a written opinion that agrees that if it had been different it would have been legal. And that opinion could potentially be used in later cases dealing with this specific part of the PROTECT act.
That said, as per obscenity: again, I’m not a lawyer. But if I have to go and search something out that I want, and download it to my personal computer from someone else’s personal website, in a way that does not present said image to others in any way…is that material not then private?
I’m still not a lawyer, but IMO, the law– which states that it is illegal to “knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind that depicts a minor engaging in sexually explicit conduct and is obscene” –is an attempt to essentially make a certain *fantasy* illegal. It’s a thought crime. Because the production, distribution, reception, and/or possession of such materials have not been shown to definitively cause harm to ANYone (unlike that of, say, illegal drugs), there’s no reason why it SHOULD be illegal.
It is illegal because people think it’s wrong to feel that way about child-like characters, and because they think that people who enjoy those materials either already HAVE done terrible things to real children, or will. So when a person gets convicted for having loli hentai manga or anime, IMO they’re not really being convicted for that particular manga or anime, but for some fictional crime they may or may not have committed, or supposedly would later commit.
As such, even though I personally find even virtual kiddy porn disgusting, I will defend the material and its readers high and low, at least until someone comes up with strong, credible evidence that its material definitively causes escalation to real-life child abuse.
June 20th, 2009 at 9:00 am
Think of the Internet like phones or electronic money transfers. Signing onto email, downloading a comic or ordering a comic online connects you to a system of nodes distributed throughout the U.S. You may be alone when you conduct a particular transaction, but what makes that action possible is a network of commercial interactions that the U.S. Constitution gives Congress the authority to regulate, at least according to Supreme Court interpretations that go back at least to the mid-1930s.