4th Circuit Gives Whorley 'Bird'

The U.S. Circuit Court of Appeals for the Fourth Circuit on June 15 voted 10-1 to deny a rehearing on a Virginia man's obscenity convictions based on emails discussing fantasies involving minors' sexual conduct and receipt of cartoons depicting child sex.

Dwight Whorley was convicted in December 2005, and is serving 20 years on 74 child pornography and obscenity counts. Whorley used a Virginia Employment Commission computer to receive obscene Japanese anime cartoons depicting underage girls engaged in sex acts with men, obscene emails, and actual child pornography. Whorley was the first person in the country convicted under a 2003 law that prohibited cartoons depicting child sex (18 U.S.C. sec. 1466A). In December 2008, the 4th Circuit rejected his appeal (U.S. v. Whorley, No. 06-4288) on 1st Amendment grounds, holding that emails that don't include pictures may be deemed obscene, that the statute could prohibit child porn cartoons that didn't depict real-life children, and that interstate trafficking of obscene materials may be prohibited.

President Bush signed the PROTECT Act of 2003 that enacted 18 U.S.C. sec. 1466A(a)(1), which in relevant part states:

"Any person who... knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that... depicts a minor engaging in sexually explicit conduct and is obscene... or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1)...." Those penalties include a prison sentence of 5-20 years.

Judge Roger Gregory, the lone dissenter, argued that the emails at issue incorporated no pictures and that the 1st Amendment protects private fantasies.