Court Rejects First Amendment Challenges to Child Related Obscenity Charges

US v. Whorley: Whorley was charged with a whole boatload of obscenity and child pornography charges after his receipt of that material was discovered on a publically accessible computer. Specifically, he was charged with 20 counts of receiving obscene Japanese cartoons depicting children; 20 counts of doing so after having been previously convicted of possessing child pornography; 15 counts of possession of child pornography (based on photographs); and 20 counts of sending or receiving obscene Emails describing children in interstate commerce. He was convicted by a jury on 74 of the 75 counts (one of the child porn counts was dismissed) and sentenced to 240 months in prison.

On appeal, Whorley challenged the obscenity convictions - those involving the Emails and cartoons - and the enhanced sentence for the cartoon charges, arguing that they violated the First Amendment, in several ways. The Fourth Circuit affirmed, shooting down all those arguments. First, the court disagreed that because 18 USC 1642 did not make an exception for the private receipt or possession of obscene material it violated the First Amendment as interpreted in Stanley v. Georgia. As the court points out, the Supreme Court has repeatedly held that just because Stanley protects the private possession of obscene materials there does not exist a related right to receive obscene material. Second, the court rejected the argument that section 1642 was impermissibly vague. Third, the court rejected Whorley's as applied challenges to 1642, for largely the same reasons as it rejected the facial challenges. Specifically, it rejected the argument that the text Emails or cartoons could be obscene. Finally, the court rejected the argument that the enhancement provisions of 18 USC 1466A(a)(1) was unconstitutional as applied to the cartoons at issue because they did not depict actual children. The court also rejected (and briefly discussed) Whorley's challenges to some trial issues and his sentence.

Judge Gregory dissented on the issue of whether the Emails could be obscene and the sentencing enhancements. With regards to the Emails, he did so based on an argument admittedly not raised by Whorley, that the Emails "were pure speech protected by the First Amendment." Judge Gregory contends that the majority's note that the Supreme Court has held that words can be obscene "is not sufficient, on its own, to criminalize pure speech." However, Judge Gregory never defines what "pure speech" is and how it is distinguishable from words that can be obscene. His dissent seems to be more an objection to Supreme Court holdings that obscenity lies outside the protection of the First Amendment (an objection I share, BTW). As for the sentence enhancements, Judge Gregory reads the applicable statutes to require the pictures at issue to depict an actual child, so the cartoons at issue in this case do not apply.

UPDATE: My apologies - apparently "pure speech" is a term of art in First Amendment cases with which I was not familiar. It refers to speech that is not bound up with conduct and is thus "pure."