Fourth Circuit denies en banc review in the Whorley obscenity case

Jun 29, 2009 Fourth Circuit denies en banc review in the Whorley obscenity case

Bill of Rights (From public domain.)

On March 9, 2009, I blogged about the Fourth Circuit’s decision upholding a conviction and steep sentence on counts for obscenity and child pornography in the form of Japanese anime drawings and allegedly obscene e-mails. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008). Concurring in part and dissenting in part, Judge Gregory joined the majority in affirming Whorley’s conviction for receiving obscenity in the form of the drawings, and Whorley’s conviction for violating 18 U.S.C. § 2252(a)(2) (generally prohibiting receipt of visual depictions "involv[ing] the use of a minor engaging in sexually explicit conduct" and displaying such conduct). It is remarkable and most unfortunate that all three judges upheld the foregoing 18 U.S.C. § 2252(a)(2) count, because I believe Ashcroft v. Free Speech Coalition clearly prohibits a child pornography conviction for Whorley’s receipt merely of sexually explicit drawings rather than of still or moving photographs of actual minors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).  

Here is an uPdate on Whorley’s ultimately failed en banc petition, filed on January 2. 2009:

– Whorley’s en banc petition (here is the prosecution’s opposition thereto) challenges all counts upon which he was convicted. It does not challenge his sentence.

– Judge Roger Gregory was the only judge to vote in favor of granting en banc review. Judge Gregory partially dissented from the original Whorley opinion. He dissented from Whorley’s conviction for sending purely textual emails about his sexual fantasies involving children. He also dissented from Whorley’s conviction for violating 18 U.S.C. § 1466A(a)(1), which generally prohibits receipt of material that "depicts a minor engaging in sexually explicit conduct; and is obscene." The basis for his conclusion is not Ashcroft v. F.S.C., but instead his interpretation of statutory language and his conclusion that an actual minor must be depicted to violate 18 U.S.C. § 1466A(a)(1).

– The order denying en banc review was issued in published form on June 15, 2009. The en banc denial order only mentions obscenity, even though two counts on which Whorley was convicted were based on the apparent age of the image depicted therein, and the remaining two counts were for obscenity. Much has been made about the "pure speech" involved in one of the two obscenity counts on which Whorley was convicted, and that "pure speech" count is the focus of Judge Gregory’s dissent from the denial of en banc review, with his using a footnote (n.3) to dissent from Whorley’s conviction under 18 U.S.C. § 466A(a)(1).

– To my knowledge, the Supreme Court obscenity caselaw still does not — but should, in my opinion — completely bar obscenity convictions for words alone. To be certain, the Supreme Court has at least drawn the line at ruling that the Carnal Knowledge film is not obscene as a matter of law. Jenkins v. Georgia, 419 U.S. 13 (1974). However, Jenkins does not create any safe harbor for words one way or the other. Moreover, Jenkins does not create any safe harbor for any type of nudity, other than that Carnal Knowledge shows Anne Margaret’s bared backside and part of an unclothed breast, which should bar bared buttocks and partially bared breasts from obscenity prosecutions and convictions. 

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