Congress Can Ban Receipt of Obscene Pornographic Text, Drawings Online

Author: Alex Harris

The Fourth Circuit upheld the conviction of a man who downloaded, among other content, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts. Federal law prohibits receiving obscene depictions of “a minor engaging in sexually explicit conduct.” 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the Internet. Receiving content via the Internet, the court said, constitutes trafficking in commerce. It is therefore unlike mere possession of obscenity in one’s home, as is protected by the First Amendment and Stanley v. Georgia. Further, the court held that text and drawings can be obscene and prohibited without violating the First Amendment.

Defendant Dwight Whorley was discovered viewing child pornography, graphic illustrations of fictional minors engaged in sexual acts, and text emails describing fictional minors engaged in sexual acts, on a computer at the Virginia Employment Commission. A search of his computer’s history and his email account revealed that he had downloaded photographs and cartoon drawings of children engaged in sexual activities and had exchanged text-only emails with other adults describing sexual fantasies involving children. He was convicted violating18 U.S.C. § 1466A(a) (prohibiting receipt of obscene depictions of “a minor engaging in sexually explicit conduct,”) and appealed on First Amendment and procedural grounds, not discussed here.

Judge Niemeyer, writing for a divided panel of the Fourth Circuit, upheld Whorley’s convictions on all counts. The court rejected the argument that receiving obscene material over the Internet is akin to possessing material in one’s home, which is protected by Stanley v. Georgia. Judge Jones’ concurrence made explicit the court’s determination that downloading material from the internet is not mere possession, but commerce. The court held that the statute was not vague, because it prohibits only knowing receipt of materials and so presumably would not apply to accidental access, for example in unsolicited emails or in a pop-up.

The court further rejected Whorley’s argument that the cartoon drawings were not depictions of actual children, and were therefore outside the ambit of 18 U.S.C. § 1466A(a). Rather, the court read the statute to encompass not only photographs and drawings of real children, but even drawings of purely fictional children.

Judge Niemeyer also rejected the defendant’s argument that the court’s broad reading of the statute must leave it unconstitutional. The argument centered on the Supreme Court’s recent holding in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which overturned a broad statute banning all depictions of children, including virtual children, engaged in sexual activity. The Supreme Court there held that the goal of keeping pedophiles from whetting their appetites was not a sufficient justification for the statute. However, the appeals court here noted that the statute overturned in Free Speech Coalition was overbroad by not limiting itself to obscene material, whereas the statutes under which Whorley was convicted only apply to obscene material. Given the proper jury instruction on the Miller test for obscenity, the court held, the defendant could constitutionally be convicted for downloading obscene drawings and text related to even fictional children.

Finally, the court rejected Whorley’s claim that under the First Amendment, Congress could not ban his text-only emails. Though he did not make the argument that text is pure speech, Judge Gregory raised the issue in his vigorous dissent. Gregory pointed to the instances of great literature and film that have explored themes of incest and adult attraction to children. He pointedly wondered if Nabokov could have been convicted for emailing excerpts of Lolita. Gregory also read § 1466A(a) differently, noting that the legal definitions of “children” and the statute’s legislative history suggest interpreting the provision narrowly, to include only depictions of actual children. The court, however, noted that the Supreme Court has held that mere text can be obscene and so, without analyzing the text of Whorley’s emails or the category of text describing adult attraction to children for artistic or literary merit, upheld Whorley’s convictions for the emails, as well as for the drawings and photographs.

United States v. Whorley, 550 F.3d 326 (4th Cir. Dec. 18, 2008).