PUBLISHED
Filed: June 15, 2009
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4288
(3:05-cr-00114-HEH)
DWIGHT EDWIN WHORLEY,
Defendant-Appellant.
ORDER
Appellant has filed a petition for rehearing and rehearing en
banc.
A member of the court requested a poll on the petition for
rehearing en banc. Chief Judge Williams, Judge Wilkinson,
Judge Niemeyer, Judge Michael, Judge Motz, Judge Traxler,
Judge King, Judge Shedd, Judge Duncan, and Judge Agee
voted to deny rehearing en banc, and Judge Gregory voted to
grant rehearing.
The petition for rehearing is denied, and, because the poll
on rehearing en banc failed to produce a majority of judges
in active service in favor of rehearing en banc, the petition for
rehearing en banc is also denied. Judge Niemeyer wrote an
opinion supporting the denial of rehearing en banc, and Judge
Gregory wrote an opinion dissenting from the denial of
rehearing en banc.
2 UNITED STATES v. WHORLEY
For the Court
/s/ Patricia S. Connor
Clerk
NIEMEYER, Circuit Judge, supporting the denial of rehear-
ing en banc:
My colleague’s dissenting position rests on his belief that
the First Amendment protects concededly obscene e-mails
because the e-mails "implicated no commercial interest and,
although the e-mails described fantasies about sexual conduct
involving children, the children referred to were imagined, not
real." Yet, if we accept, as we must, the proposition that
expression, regardless of its form, is protected by the First
Amendment, we must likewise recognize the proposition that
obscenity in any of those forms is not protected and may be
regulated by the state. See Miller v. California, 413 U.S. 15,
24 (1973); Kaplan v. California, 413 U.S. 115, 119 (1973)
("Obscenity can, of course, manifest itself in conduct, in the
pictorial representation of conduct, or in the written and oral
description of conduct").
Despite my good colleague’s misgivings, Whorley violated
criminal statutes regulating obscenity, and his convictions
may not be forgiven because his conduct was prompted by his
sexual fantasies. Accordingly, we appropriately deny his
motion for a rehearing en banc.
GREGORY, Circuit Judge, dissenting from the denial of
rehearing en banc:
Dwight Whorley was convicted on twenty counts of violat-
ing 18 U.S.C. § 14621 for communicating by e-mail with con-
1
Section 1462 criminalizes the import or transportation of "any obscene,
lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film,
paper, letter, writing, print, or other matter of indecent character" in inter-
state commerce.
UNITED STATES v. WHORLEY 3
senting adults about their personal and private fantasies. The
offending e-mails were purely textual and did not include any
images. They implicated no commercial interest and, although
the e-mails described fantasies about sexual conduct involv-
ing children, the children referred to were imagined, not real.
It is undisputed that the e-mails did not involve any victimiza-
tion or exploitation of actual children. Nonetheless, the panel
majority rejected Whorley’s as-applied challenge to his con-
viction under 18 U.S.C. § 1462 because the e-mails were
found by a jury to be obscene.
This is a difficult case. The e-mails were admittedly trans-
mitted and received through channels of interstate commerce
and were found by a jury to be obscene under the obscenity
test laid out in Miller v. California, 413 U.S. 15, 24 (1973).
One might say that this absolves us of the need to look any
further into the potential constitutional harms inflicted by the
application of 18 U.S.C. § 1462 to Whorley’s conduct.2
Haven’t we long said, after all, that the First Amendment does
not protect obscenity? See id. at 23. Yet, "First Amendment
freedoms are most in danger when the government seeks to
control thought or to justify its laws for that impermissible
end." Ashcroft v. Free Speech Coal., 535 U.S. 234, 253
(2002) (emphasis added). I am hard-pressed to think of a bet-
ter 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.
2
The only argument raised on appeal regarding these e-mails was that,
as textual speech, the e-mails could not be obscene. The panel majority
correctly pointed out that words can be obscene under the Miller test.
United States v. Whorley, 550 F.3d 326, 335 (4th Cir. 2008). Nonetheless,
I believe we are obligated to review for plain error whether the district
court should have dismissed these charges because of the significant
implications of the majority’s decision for the First Amendment. See id.
at 347-48 (Gregory, J., dissenting).
4 UNITED STATES v. WHORLEY
In Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme
Court extended First Amendment protections to the posses-
sion of obscene materials in the privacy of one’s home. Since
then, our obscenity jurisprudence has not allowed Stanley to
reach much beyond its facts. As the panel opinion notes, the
Supreme Court "has repeatedly rejected the notion . . . that as
a matter of logic, because the First Amendment prohibits the
criminalization of private possession of obscene materials
within the home, there exists a correlative ‘right to receive’
obscene materials." United States v. Whorley, 550 F.3d 326,
332 (4th Cir. 2008). Yet, I am aware of no case that, in limit-
ing Stanley, deals with circumstances like this where the send-
ing or receiving of the obscene materials involves neither a
commercial transaction nor any kind of victim. In fact, I have
difficulty seeing what interest the government could possibly
have in regulating this particular conduct of Whorley’s other
than some sort of "indirect harm" theory of the type rejected
by the Supreme Court in Free Speech Coalition, 535 U.S.
234.
In that case, the Court considered the constitutionality of a
definition of "child pornography" in the Child Pornography
Prevention Act of 1996 that would have covered "a range of
depictions, sometimes called ‘virtual child pornography,’
which include computer-generated images, as well as images
produced by more traditional means." Id. at 241. Noting the
clear state interest in prohibiting the production or distribution
of images that "are themselves the product of child sexual
abuse," id. at 249, the Court could identify no similar interest
in regulating "virtual child pornography" since it "creates no
victims by its production," id. at 250. The Court then rejected
the Government’s claim that this kind of pornography can
indirectly cause harm by creating "some unquantified poten-
tial for subsequent criminal acts." Id. The Court found that
"[t]he mere tendency of speech to encourage unlawful acts is
not a sufficient reason for banning it. . . . [because] [t]he gov-
ernment ‘cannot constitutionally premise legislation on the
UNITED STATES v. WHORLEY 5
desirability of controlling a person’s private thoughts.’" Id. at
253 (quoting Stanley, 394 U.S. at 566).
Similarly, here, I see no interest in regulating the sending
of private e-mail fantasies about imaginary children beyond
the perceived desirability of censoring these kinds of
thoughts. Free Speech Coalition makes clear that the First
Amendment protects against this kind of censorship premised
on speculative and indirect theories of harm.
One might argue that this case is distinguishable from Free
Speech Coalition because here we are dealing with material
that has been found obscene and thus is not entitled to any
First Amendment protections to begin with. But, as the
Supreme Court recognized in Stanley, while "the First and
Fourteenth Amendments recognize a valid governmental
interest in dealing with the problem of obscenity[,]. . . . the
assertion of that interest, cannot, in every context, be insulated
from all constitutional protections." 394 U.S. at 563. Free
Speech Coalition and Stanley, taken together, stand for the
proposition that when the government’s only interest in regu-
lating obscenity is to protect people from their own thoughts
or to censor thoughts that have an unquantifiable potential to
induce future bad acts, the First Amendment shelters individ-
uals from this kind of state intrusion on their personal privacy.
"Our whole constitutional heritage rebels at the thought of
giving government the power to control men’s minds." Stan-
ley, 394 U.S. at 565; cf. United States v. Reidel, 402 U.S. 351,
356 (1971) (suggesting in reversing dismissal of indictment
for mailing obscene circulars that the case might be different
if defendant had "complaints about governmental violations
of his private thoughts or fantasies").
The Supreme Court has long recognized that "constitution-
ally protected expression . . . is often separated from obscen-
ity only by a dim and uncertain line" and thus we must be
careful that "regulations of obscenity scrupulously embody
the most rigorous procedural safeguards." Bantam Books, Inc.
6 UNITED STATES v. WHORLEY
v. Sullivan, 372 U.S. 58, 66 (1963) (citations omitted). Where
the state has a legitimate interest in regulating obscene materi-
als—for example, where those materials are being commer-
cially traded and/or where those materials are the product of
the abuse or exploitation of their subjects—the First Amend-
ment’s protections may not apply. But where the only articul-
able interest in regulation is a fear of the expression of certain
kinds of thoughts, even obscenity must be given a constitu-
tional safe harbor. "Stanley rests on the proposition that free-
dom from governmental manipulation of the content of a
man’s mind necessitates a ban on punishment for the mere
possession of the memorabilia of a man’s thoughts and
dreams, unless that punishment can be related to a state inter-
est of a stronger nature than the simple desire to proscribe
obscenity as such." Reidel, 402 U.S. at 359 (Harlan, J., con-
curring).
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," id., and the same principles
that animated Stanley call now for Stanley’s extension to the
circumstances of this case. A failure to recognize Stanley’s
applicability to non-commercial, private e-mail communica-
tions in which the government has no legitimate interest dan-
gerously restricts the use of today’s dominant medium for
exercising freedom of speech.
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 individ-
ual freedom of thought are incredibly worrisome. This is an
important and difficult case, and one that I strongly believe
merits rehearing by this court sitting en banc. My colleagues
apparently disagree, and I therefore urge the Appellant to seek
certiorari from the Supreme Court.3
3
Whorley has also raised an as-applied challenge to 18 U.S.C.
§ 1466A(a)(1), which he argues prohibits only visual depictions of actual
UNITED STATES v. WHORLEY 7
minors. I agree and believe this is also an important issue for further con-
sideration if not by this Court sitting en banc then by the Supreme Court.
A straightforward reading of the statute shows that it prohibits images that
"depict[ ] a minor engaging in sexually explicit conduct." 18 U.S.C.
§ 1466A(a)(1)(A) (emphasis added). A minor is typically understood to be
a "person under the age of eighteen years." 18 U.S.C. § 2256 (emphasis
added). Images of purely imagined children are not depictions of a minor
person such that the prohibitions of § 1466(A)(a)(1) would apply. See
Whorley, 550 F.3d at 351 (Gregory, J., dissenting). This interpretation of
the statute is further bolstered by the fact that an interpretation that found
§ 1466A(a)(1) applied to depictions of both real and imagined children
would render § 1466A(a)(2) superfluous. See id. at 351-52.