Obscene Drawings, Cartoons, Sculpture, Paintings that Depict Minors Engaged in Sexually Explicit Conduct Not Protected Free Speech

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair


On March 30, 2004, Dwight Whorley visited a public resource room maintained by the Virginia Employment Commission in Richmond. The room is equipped with Commission computers, printers and copiers which may be used by job seekers. A woman in the room noticed that Whorley was receiving what appeared to her as child pornography on a Commission computer. She promptly alerted Commission staff about suspicions. An officer manager and two supervisors went to the resource room where they found Whorley standing in front of a printer with some papers in his hand. One of the supervisors requested that Whorley show him the documents. Whorley complied. The documents depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.


The office manager made a determination that Whorley had inappropriately used the Commission’s computer, restricted him from further use of the computer, and escorted him from the premises. The manager then returned to the computer Whorley had been using and found his Yahoo e-mail account was still open. Commission employees discovered several more copies of the sexually explicit anime-style cartoons by the computer. After printing off several of Whorley’s e-mails and removing the computer from service, the Commission office manager notified his supervisor and state police about the incident.


A subsequent law enforcement investigation determined that Whorley was already on a federal probation for a 1999 conviction for downloading child pornography on a Virginia Commonwealth University computer at the time of the Commission incident. The local U.S. Attorney’s Office presented to a grand jury the cartoons copied by Whorley at the Commission room, the data in the computer he used in the room, and information received from Yahoo about his e-mail account. Based on this evidence, the grand jury returned a 75-count indictment against Whorley alleging:


Counts 1-20 charged that on March 30, 2004 Whorley knowingly received obscene cartoons in interstate and foreign commerce in violation of 18 U.S.C. § 1462. These counts were based on 20 cartoons depicting prepubescent children engaged in sexually explicit acts (including masturbation, intercourse, and oral sex) with adults, some of which were coerced.


Counts 21-40, based on the same cartoons, charged Whorley with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaged in sexually explicit conduct in violation of § 1466A(a)(1).


Counts 41-55 charged Whorley with knowingly receiving on March 11 and 12, 2004, 15 visual depictions of minors engaged sexually explicit conduct in violation of § 2252(a)(2). These counts involved lascivious photographs of actual naked children.

Counts 56-75 charged Whorley with sending or receiving 20 obscene e-mails in interstate commerce during the period between February 5, 2004 and April 2, 2004, in violation of § 1462. These e-mails contained sexual explicit descriptions about children involved in incest and molestation by doctors.


See: United States v. Whorley, 2008 U.S. App. LEXIS 25438, pps. 3-6 (4th Cir. Dec. 18, 2008).

At a subsequent trial, the federal district court dismissed Count 41 for lack of evidence that the photographs actually depicted a minor. The jury convicted Whorley of the remaining 74 counts. At sentencing the government moved for an upward departure in sentencing. The district court granted the motion but not to the extent requested by the government. Id., at LEXIS 6-7. The appeals court then discussed why the district court imposed the subsequent 240-month sentence:

“The departure was based on numerous factors, including Whorley’s history of downloading child pornography, which was not represented in the recommended Guidelines calculation because, except for the 1999 conviction, the prior conduct had not resulted in Whorley’s prosecution and conviction. The court also noted Whorley’s repeated failure to abide by the terms of supervised release from his prior conviction, including
continuing to access computers without the probation officer’s approval, numerous false statements concerning attempts to obtain employment, failure to obtain employment, failure to report to the Department of Rehabilitation Services, failure to report to the Offender Aid and Restoration Program, and most disturbingly, his presence at local malls and public libraries frequented by children in direct disobedience of his probation officer’s instructions.


“Also contributing to the decision to depart upward was Whorley’s failure ‘to make a good faith effort to control his sexual deviance’ and the ‘increasingly sadistic and violent’ nature of the prepubescent erotica recovered from Whorley. After increasing Whorley’s criminal history from a Category III to a Category VI, the most serious category, the district court found that the base offense level of 27 still yielded a sentencing range below the mandatory minimum statutory sentence of 180 months. The court therefore moved down the sentencing table to an offense level 32, and sentenced Whorley to 240 months’ imprisonment, which was 60 months above the recommended Guidelines sentence but which fell within the lower half of the statutory range of 180 to 480 months.” Id., at LEXIS 7-8 [Internal citation omitted].


Whorley appealed to the United States Court of Appeals for the Fourth Circuit raising the following constitutional challenges:

§ 1462 is facially unconstitutional because it does not make any exception for the private receipt, possession or viewing of obscene material which, as Whorley claimed, is protected by the First Amendment.


§ 1462 is also facially unconstitutional because its use of the word “receives” with intent to prohibit receipt of obscene matter using instruments of interstate commerce is impermissibly vague in the context of receiving obscene matter from an interactive computer service.


§ 1462 is unconstitutional as applied to Counts 1-20 (receiving obscene cartoons) and Counts 56-75 (receiving obscene e-mails because Whorley did not know that cartoons and text-only e-mails lacked First Amendment protection.

§ 1466A(a)(1) is unconstitutional because the cartoons that formed the basis for Counts 21-40 did not depict actual people.

See: United States v. Whorley, supra.




The United States Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969) held that a Georgia statute prohibiting the possession of obscene material, particularly within one’s dwelling, violates the First Amendment and Fourteenth Amendments. Id., at 568. The Stanley court essentially found the Georgia statute too board because the “traditional notions of individual liberty” and the societal importance placed on the “privacy of a person’s own home” create a “right to be free from state inquiry into [and government regulation over] contents of [one’s home] library.” Id., at 565-68.


Stanley, however, did not create a carte blanche constitutional right to receive, transport, or distribute obscene material. The decision left intact the government’s right to regulate obscene commerce. The Supreme Court followed Stanley with four decisions that made it abundantly clear that the First Amendment prohibition against the criminalization of obscene material within the home did not create a collateral right “to receive” obscene material:


United States v. Reidel, 402 U.S. 351 (1971) specifically rejected the notion that by creating the right to possess obscene material, Stanley somehow created a right to have it delivered through channels of commerce.


United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971) held that Stanley’s home right to possess obscene material did not establish right to import it from abroad.


United States v. Onto, 413 U.S. 139 (1973 held that First Amendment protection to possess obscene material in one’s own home created by Stanley did not translate into correlative right to receive, transport, and distribute it.


Smith v. United States, 431 U.S. 291 (1977) held that Stanley did not extend any constitutional protection to receive, transport, or distribute obscene material.


The Fourth Circuit in Whorley held that § 1462 squarely fell within the line of these four cases because the statute specifically prohibits the introduction into the United States any obscene material through the knowing use of any express company or other common carrier or interactive computer service. Id., at LEXIS 11.




Whorley maintained on appeal that the word “receives” as used in § 1462 is so broad that the statute can ensnare an unwitting recipient of obscenity who receives an “obscene textual message [sent] to a person’s e-mail account” from a malicious third party or as a “’pop-up ad’ or as part of a paid sponsor’s rotating advertisement.” He argued that § 1462 failed to give adequate notice as to when criminal liability attaches. The Fourth Circuit responded to this argument:


“’A statute is impermissibly vague if it either (1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or (2) ‘authorizes or even encourages arbitrary and discriminatory enforcement.’ Stated differently, a court considering a vagueness challenge must determine if the statutory prohibitions ‘are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.’


”In this case, Whorley’s argument, when analyzed more closely, in fact suggests no vagueness or misunderstanding about the scope of the word ‘receives.’ Giving that term its ordinary meaning, his argument assumes that ‘receives’ means to ‘come into possession of,’ to ‘acquire,’ or ‘to have delivered or brought to one,’ see Merriam-Webster’s Collegiate Dictionary 975 (10th ed. 1994); Webster’s Third New International Dictionary 1894 (3d ed. 1993); Random House Dictionary of the English Language 1610 (2d ed. 1987). As he articulates it, Whorley’s complaint about receiving obscene material unwittingly–i.e., without an intent to receive it–does not find confusion in the word ‘receives,’ but rather in the type of intent with which one can “receive” something. To be sure, one can ‘receive’ obscene materials intentionally and knowingly, or negligently, or by mistake or accident. Section 1462, however, does not criminalize every receipt of obscene materials, but only the ‘knowing’ receipt of them. It is thus apparent that in making his argument that ‘receives’ is too vague, Whorley actually confuses mens rea with the question of whether the word ‘receives’ itself is without sufficient meaning to be readily understood.


”Whorley is probably correct in observing that evolving computer technology will constantly change the ways in which a person’s computer may be used to ‘receive’ obscene material from an interactive computer service and that those changes might, depending on the technology, present serious questions as to whether such material can be said to have been ‘received.’ But no such question exists here where Whorley actively used a computer to solicit obscene material through numerous and repetitive searches and ultimately succeeded in obtaining the materials he sought. Moreover, while the facts of each case will require a jury to determine whether an individual has, in fact, ‘knowingly received’ obscene matter, the need for such a determination by the jury does not suggest that a statute is too vague. A statute need not spell out every possible factual scenario with ‘celestial precision’ to avoid being struck down on vagueness grounds..


”We conclude that the ordinary meaning of the term ‘receives’ is sufficiently precise in § 1462 to provide adequate notice to a person of ordinary intelligence of the conduct that Congress has prohibited.” Id., at LEXIS 12-15. [Internal citations omitted].




Whorley suggested to the Fourth Circuit that Counts 1-20 (obscene cartoons) were unconstitutional because he had no notice that viewing cartoon images on a computer screen was unlawful. He supported this contention with the fact that one of the government’s witnesses testified that prior to March 2004, he had used the Commission resource room to access pornographic websites on several occasions without incident and while the room was monitored by Commission employees. The Fourth Circuit was not impressed:


”To the extent that this challenge parallels Whorley’s facial challenges, it fails for the same reasons they did. Thus, whatever protection Stanley may have afforded to the possession of obscene matter in the privacy of the home, it cannot be said to have created a right to ‘receive’ obscene materials using instruments of commerce. And to the extent that this challenge is based on Whorley’s ignorance of the law or his belief that his similar conduct in the past should somehow provide him a defense, the claim is frivolous. ‘The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system’.” Id., at LEXIS 15-16.


The Fourth Circuit was equally unimpressed by Whorley’s contention that the obscene e-mails in Counts 56-75 were only textual and therefore could not be obscene, even though the district court had considered this issue “troubling.” Whorley tried to convince the court that e-mails were “pure speech” that did not include any real visual depictions, nor were they accompanied by attachments that contained obscene material. He reasoned that text, standing alone, could not be constitutionally prohibited as obscene. Id., at LEXIS 17.


The Fourth Circuit pointed out that traditional formulations of obscenity have never depended on the form or medium of expression. Id.


The Fourth Circuit followed the lead of the Supreme Court who, thirty-five years ago, defined obscenity in the context of “works” when “taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” See: Miller v. California, 413 U.S. 15, 24 (1973).


The same day the Supreme Court handed down Miller it also decided Kaplan v. California, 413 U.S. 115 (1973) which held that “works” includes words and pictorial representations. Id., at 119. Kaplan held:


“Obscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books.” Id.


The Court in Kaplan affirmed the conviction of a book store proprietor who sold a book made up ‘entirely of repetitive descriptions of physical, sexual conduct, ‘clinically’ explicit and offensive to the point of being nauseous[, with] only the most tenuous ‘plot.’ Almost every conceivable variety of sexual contact, homosexual and heterosexual, [was] described.” Id., at 116-17.


Guided by Miller and Kaplan, the Fourth Circuit concluded that both the cartoons and textual e-mails in the Whorley case were obscene within the meaning of § 1452.




Finally, Whorley tried to convince that Fourth Circuit that because the cartoon figures in Counts 21-40 were not depictions of actual people, § 1466A(a)(1) was unconstitutional under two existing Supreme Court precedents.


The Court in New York v. Ferber, 458 U.S. 747 (1982) upheld a New York statute that prohibited depictions of actual children engaged in sexual conduct, regardless of whether the depictions were obscene. Id., at 773-74. Whorley construed Ferber to require use of “actual children” before there could be criminal wrongdoing. He also cited Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) which held that any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct” violates the First Amendment insofar as the statute prohibited virtual imagery of minors that was neither obscene nor involved actual children. Id., at 246-47.


The Fourth Circuit pointed out that Whorley, to make his argument, stressed that “subsection (a)(1) prohibiting depictions of ‘a minor engaging in sexually explicit conduct’) is mirrored in subsection (a)(2) (prohibiting ‘an image that is, or appears to be, of a minor’). He argues that the ‘appears to be’ language in subsection (a)92) indicates reference to a real minor in subsection (a)(1). In addition, he contends that subsection (a)(1) prohibits material depicting ‘sexually explicit conduct,’ which is defined in 18 U.S.C. § 2256 as referring to real people. Section 2256 defines ‘sexually explicit conduct’ in part as actual or simulated sexual intercourse, ‘whether between persons of the same or opposite sex.’


”In making his argument, however, Whorley focuses too narrowly on isolated portions of § 1466a(a)(1). While § 1466A(a)(1) would clearly prohibit an obscene photographic depiction of an actual minor engaging in sexually explicit conduct, it also criminalizes receipt of ‘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. § 1466A(a)(1). In addition, Whorley overlooks § 1466A(c), which unambiguously states that ‘[i]t is not a required element of any offense under this section that the minor depicted actually exist.’ The clear language of § 1466A(a)(1) and § 1466A(c) is sufficiently broad to prohibit receipt of obscene cartoons, as charged in Counts 21-40.


“This leaves Whorley with the argument that if an actual minor is not required to be depicted in § 1466A(a)(1), then the statute is unconstitutional under New York v. Ferber and Ashcroft v. Free Speech Coalition. There is, of course, no suggestion that the cartoons in this case depict actual children; they were cartoons. Relying specifically on Ashcroft v. Free Speech Coalition, Whorley points to the observation made in that opinion that the First Amendment does not protect ‘defamation, incitement, obscenity, and pornography produced with real children,’ but that a ban on non-obscene material that did not use real children was impermissibly overbroad. The Court in Ashcroft noted further that New York v. Ferber ‘provide[d] no support for a statute that eliminates the distinction [between actual and virtual child pornography].’ Thus, he asserts that the First Amendment protects non-obscene pornography that does not depict real children.


“But in making his argument, Whorley ignores the language of § 1466A(a)(1), which prohibits visual depictions of minors only when they are obscene. Ashcroft itself noted that obscenity in any form is not protected by the First Amendment. Thus, regardless of whether § 1466A(a)(1) requires an actual minor, it is nonetheless a valid restriction on obscene speech under Miller, not a restriction on non-obscene pornography of the type permitted by Ferber. We thus find Whorley’s as-applied constitutional challenge to § 1466A(a)(1) to be without merit.” Id., at LEXIS 19-21 (emphasis original) [Internal citations omitted].


This article about the Whorley case is consistent with other recent pieces we’ve posted about the First Amendment, the Internet, and prohibited sexual conduct involving children. Whorley re-emphasized the point we made in those articles: the First Amendment does not protect any sexual activity – speech, cartoons, pornography, solicitation, and e-mails – involving minors, real or not.