I hope I have some history in these environs as a conservative, and, despite my former employment as a PD, some credibility as being generally on the “law and order” side of the fence.
But the recent obscenity conviction of one Dwight Whorley disturbs me. The unfortunately-named Whorley was convicted on twenty-some federal counts of transporting obscenity in interstate commerce. The obscenity in question was e-mail. Pure text e-mail. No pictures, no movies, nothing except the descriptions of fantasy. Now, admittedly, this was pretty sick fantasy: discussion of sex, coerced sex, with children. Nor is Whorley a sympathetic defendant; he was also charged with crimes relating to graphical material - cartoons - and real-life pictures of child porn.
I don’t have any heartburn at all with his convictions for the real-life child porn. And although it’s a closer question, the cartoons, even though they don’t depict real children, can be obscene and therefore criminal.
The court also convicted him for the text e-mails. The jury found that these e-mails, based solely on their words, were obscene, and the court ruled that as a matter of settled law obscene materials do not enjoy First Amendment protection, and the state may thus criminalize them, which the state had done.
Open and shut.
But I find myself nodding in agreement with the dissent’s words:
Correct, and I apologize for the confusion. Whorley appealed his conviction to the Fourth Circuit, which affirmed it in a 2-1 panel ruling and just now denied rehearing en banc. So unless the Supremes step in, it’s a done deal.
Is an Email (text) child porn fantasy fundamentally any different from one in the classic paper-back book?
I am assuming mere possession (and NOT necessarily intent to distribute) of child porn is the chargable criminal offence here. Is that an incorrect assumption?
I’m curious where an instant messaging conversation (or hell, even text messages) would fit in this situation – is it merely a typed conversation that could easily occur over the phone (and then, I assume, remain legal) or closer to a series of emails, which in this instance seem to be on par with published material?
Or maybe I’m just making this more confusing. Punishing someone for their fantasies, however disgusting, just because they’re on the record… it just doesn’t seem right.
One might think that a private exchange, not intended for any larger group, would not be subject to such laws. But apparently not.
Who was it who found a “right to privacy” in the Constitution? Wasn’t it Douglas? And haven’t conservatives been railing against him and it and his “penumbras” ever since?
I’m uneasy as well about the e-mails being criminalized.
A slight diversion here - if you’re charged with child rape or other vile crime, could the music you have in your possession be used as evidence against you?
The only example I can think of is the 1980s trial (and conviction) of Diane Downs for the fatal shooting of one of her children and the severe wounding of two others. The prosecution introduced evidence that she had a Duran Duran song (“Hungry Like The Wolf”) on a cassette in the tape deck in her car* (where the shootings occurred), and played it at trial to supposedly show her violent inclinations.
Have people’s tastes in music been used in other cases to help prosecute them? I’d hate to think that the weirder stuff on my Ipod could be used against me.
*I suppose this in itself might constitute a misdemeanor.
I couldn’t speak to music, but I have heard many cases where books have been used as evidence. “She had this book, so she knew how to poison him”, etc. But while I’ve heard cases where books were used to support that the defendent had some necessary piece of knowledge, I’m not aware of them being used to show evidence of an emotional state.
I recall plenty of discussion on what a number of men wanted to do to the Olsen twins, but said in a context of “when they turn 18”. It seems that would be covered under this same decision, wouldn’t it?
What is it about cartoons vs. text that allows for the former to be criminally obscene but not (in your comfort) the latter?
Just to lay all my cards on the table, I’m uncomfortable with either being declared obscene. Hell, I’m uncomfortable with the concept of criminal obscenity at all, at least as relates to private, wholly consensual dissemination.
Right. Although, and I speak as a sometime participant in adult-cartoon communities, there is always an annoying chicken-and-egg issue with that last determination: cartoons (or CGI) depicting pedophilic themes are illegal IF the image is obscene by the Miller test, they are not made obscene de se by merely depicting pedophilic themes. (IIRC, under Miller, obscenity is about HOW a sexually explicit theme is portrayed/expressed, not about WHAT sexually explicit theme is portrayed/expressed. Am I off?)
(*With the note that under US law as currently in the books – Title V, PROTECT Act of 2003 – if a porn CGI depicing pedophilia is so realistic an average juror can’t tell it from real photographs, the law says that the mere fact that the persons portrayed do not exist is NOT a defense!!)
Must also agree. Sure, conceptually speaking simple text COULD conceivably fail the Miller tests (explicit, lewd, devoid of literary value, etc.). BUT… it’s so damn rare that for all intents and purposes many people believe that it must be law since the 60s that text alone can’t be obscene. What we vace in this and similar cases, again, is does the repugnance of the idea expressed itself, not of the manner in which it is expressed, make it obscene ipso facto? And does this apply if the written communication is in a private or semiprivate forum?
ISTM that in the case of imaginary underage erotica we could have an analogy with the concept of speech deriding and censuring the government and denouncing it as illegitimate vs. speech directly inciting violence or criminal activity. If we have mere depiction, or fantasy, where you cannot point to a direct incitement, is it reasonable to make it a *presumption *that it is? Or to criminalize merely based on the abhorrence for what is expressed?
CP (real) obviously is criminal by the very act that creates it, and “mere” possession is reasonably in the same boat because it required a distribution and transfer, which even if nonprofit DOES feed a demand for the material.
When you get to the entirely imaginary (cartoons and stories), though, people start going for the arguments as to whether it “whets appetites” or can be used for “grooming” or other such. With which I take issue because AFAIK there is no real conclusive proof to support that, just a lot of “maybe, in the worst case scenario, conceivably…” and “if it saves just one single child” arguments :rolleyes: . Which of course means that the supporters of the greater stringency realize their appeal is to the “evilness” of the idea. Because ISTM that if you stick absolutely to the “obscenity” criterion, then a text story about a gangbang with bondage and watersports should be equally legal or not to publish and transmit if its two versions are word for word identical except that the leading lady is 21 in one and 12 in the other, or am I missing something?
Boyo is right in that possesion of non-obscene media** can **be used as evidence against you. In cases such as Whorley’s even the Sears XMas catalog in his mailbox could be evidence that he likes ogling children.
I can’t see any difference between cartoons and text narratives. Ink markings on paper that constitute representations of certain acts. Whether it does so by word or by illustration, it’s the same thing. Either both should be protected, or the state’s compelling interest in protecting the children is sufficient to criminalize both.
But Bricker was referring to how cartoons (images) could fall afoul of the law on the grounds of obscenity, and in *practice *if not in theory, for the last three decades in the US “obscenity” has been at issue when dealing with **audiovisual **media, but had pretty much been left by the wayside when dealing with the written word (books, magazines, blogs).