4th Circuit upholds obscenity conviction for adult-to-adult e-mail about sex with children

Eugene Volokh writes at the Volokh Conspiracy:   “. . . the constitutional disagreement between the majority and the dissent focuses on the text in the e-mail. The text apparently wasn’t an attempt to conspire to have sex with children, or an attempt to seduce someone who the sender wrongly thought was a child; the prosecution was simply based on the theory that the text was obscene, and therefore criminally punishable . . . ”

Volokh agrees that under U.S. Supreme Court precedent the mere receipt of the text of the email could correctly be punished as obscenity.

Judge Niemeyer wrote the opinion, in which Judge Jones joined. Judge Jones wrote a separate concurring opinion. Judge Gregory wrote a separate opinion concurring in part and dissenting in part. U.S. v. Whorley, No. 06-4288 (4th Cir. Dec. 18, 2008) begins:

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Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly  receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months’ imprisonment.

On appeal, Whorley contends principally that the statutes under which he was convicted are unconstitutional. He claims (1) that § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557 (1969); (2) that § 1462 is facially unconstitutional because the term “receives,” when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors. In addition to his constitutional challenges, Whorley challenges numerous procedural rulings by the district court and the reasonableness of the sentence that it imposed. Because § 1462 punishes trafficking in commerce, not the mere possession of obscene materials, and “receives” has a uniform meaning that is readily understood, we reject Whorley’s facial challenges. We also reject his arguments that textual matter cannot be obscene under § 1462 and that cartoons depicting minors in sexually explicit conduct must depict reallife minors to violate § 1466A(a)(1). Finally, we reject his challenges to the district court’s procedural rulings and his sentence. Accordingly, we affirm . . .