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Preserve the right to be let alone

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NOTE: The current version of this blog entry constitutes a substantial rewrite of my original blog entry from earlier this morning, after I more closely read and sifted through the Fourth Circuit’s Whorley decision discussed below.

Stanley v. Georgia, 394 U.S. 557 (1969), was one of my favorite Supreme Court cases in my criminal law casebook. Stanley‘s majority opinion, penned by Justice Thurgood Marshall, reversed an obscenity conviction where the conviction was based on the possession of allegedly obscene materials in the defendant’s home. Stanley quotes the following magnificent dissenting passage from Justice Brandeis in Olmstead:

“‘The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.’ Olmstead v. U.S., 277 U.S. 438, 478 (1928).” Stanley, 394 U.S. at 564.

In December 2008, a three-judge panel of the Fourth Circuit gave a narrow reading to Stanley. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008). The whole panel limited Stanley‘s protections to one’s home. Additionally, Judges Niemeyer and Jones distinguished — to prosecutors’ favor — between the receipt of obscenity and the possession of obscenity (Stanley addresses possession of obscenity), even though it appears that one must receive sexually explicit material before being able to possess it.

At the outset, one is left to wonder why the Whorley defense waited just days before trial to move to recuse the trial judge, who informed the parties at the outset of the case of his intimate involvement with the 1986 Attorney General pornography commission — when he was an assistant United States attorney — and who asked whether either party would be moving to recuse. The Fourth Circuit affirmed the last-moment recusal denial due to its last moment nature, without going to the merits of the recusal motion. Due to attorney-client confidentiality issues, we probably never will know whether the defendant and/or his counsel at first felt that recusal of their trial judge might land them out of the frying pan and into the fire. Whorley kept one of his trial lawyers on appeal, which suggests either that such strategizing may have been going on, or else that Whorley felt his appellate team was stronger to include one of his trial lawyers than not.

The Whorley majority affirmed Dwight Whorley’s entire conviction and steep sentence for obscenity and child pornography in the form of Japanese anime drawings and allegedly obscene e-mails. 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).

Fortunately, Judge Gregory 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). Judge Gregory does not appear to explain — after dissenting from Whorley’s conviction for violating 18 U.S.C. § 1466A(a)(1) — why he votes to affirm Whorley’s conviction under § 2252(a)(2) for receipt of visual depictions “involv[ing] the use of a minor engaging in sexually explicit conduct.” The only distinction I can see between the two foregoing statutes is that 18 U.S.C. § 1466A(a)(1) speaks of “depict[ing] a minor engaging in sexually explicit conduct” (emphasis added) whereas § 2252(a)(2) addresses visual depictions “involv[ing] the use of a minor engaging in sexually explicit conduct.” (Emphasis added.) However, no good explanation seems to exist for Judge Gregory’s not having voted for either reversal or affirmance of both counts.

Finally, Judge Gregory dissents from the majority’s affirming Whorley’s conviction for sending emails about his sexual fantasies involving children but containing no visual images. Although Judge Gregory acknowledges that Supreme Court obscenity caselaw still does not completely bar obscenity convictions for words alone, he finds a safe harbor for people to engage in e-mails and other writings that are but fantasy and addresses such literary masterpieces as Lolita as similarly protected, without claiming that Whorley came even a trillion miles close to Nabakov’s literary talents.

A review of the trial docket in Whorley shows that the defense has moved the Fourth Circuit to reconsider its decision and to review the case en banc. 

ADDENDUM: Thanks to my brother lawyer Marc Randazza for writing on Whorley last December and to the Fourth Circuit blog for doing the same.