The Fourth Circuit decided today to deny rehearing en banc in a published opinion. Here it is. That, itself, is somewhat remarkable.
What's more remarkable are the underlying facts of the case of United States v. Whorely. Mr. Whorely was communicating with other adults via email. He did not send pictures. Instead, he transmitted, through text alone, his sexual fantasies. His fantasies, as it happened, involved kids and, therefore, were obscene (though the opinion makes it clear the kids were only imagined; no real children were harmed while Mr. Whorely was typing).
Judge Niemeyer, writing for everyone on the Fourth Circuit but Judge Gregory, sums the case up like this, "Whorley violated criminal statutes regulating obscenity, and his convictions may not be forgiven because his conduct was prompted by his sexual fantasies."
After noting that this may be a very unfortunate case of a criminal defense lawyer not preserving an issue properly in an appeal, Judge Gregory pulls out the rhetorical big guns in dissent.
I am hard-pressed to think of a better modern day example of government regulation of private thoughts than what we have before us in this case: convicting a man for the victimless "crime" of privately communicating his personal fantasies to other consenting adults.
Judge Gregory's view is that Stanely v. Georgia, which held that possession of obscene material in your house is protected by the First Amendment, should also apply to your email inbox.
In today's world, our e-mail inbox, just as much as our home, has become the place where we store the "memorabilia of [our] thoughts and dreams," and the same principles that animated Stanley call now for Stanley's extension to the circumstances of this case.
I have two reactions to this decision.
First, as a lawyer, I see where the court is coming from. Surely Gregory's view that your inbox is basically the same as your bedroom is factually (and probably morally) questionable. Email is out there in the world. Your bedroom is, well, not.
On the other hand, really? We're really putting people in prison for writing fiction and sending it to other people? Not to be cliche, but if Lolita were more graphic I could go to prison for faxing it to someone (you've got to use the wires to meet the other statutoy elements in the case)?
I'm with Gregory when he says that
The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome.
Why can't we just ostracize Mr. Whorely? Whatever happened to nongovernmental shaming?
Regardless of the policy arguments, the moral is clear - if you live in Maryland or any of the other states in the Fourth Circuit, watch what you put in your email.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.