Obscenity law: still "a hodge-podge"?

Affirmative action, specifically the Supreme Court's backing of a bias complaint by white firefighters in New Haven, has dominated recent discussion of judicial issues. But several legal bloggers have noticed fresh contentiousness related to obscenity law brewing at the circuit-court level.

In 2006, Dwight Whorley, a deeply unsympathetic figure with a long history of convictions for possession of child pornography, was sentenced in Virginia to 20 years in prison. Authorities had found "lascivious" pictures of children on a computer he'd used at a state-managed center for job-seekers. They also found -- and here's where things get more contentious -- Japanese anime cartoons depicting sex between adults and children, and emails in which Whorley discussed his sexual fantasies (involving children) with friends. The various infractions added up to an unusually long sentence.

Whorley's bid to get his sentence reduced hit an apparent dead end last month, when 10 of 11 members of the Fourth Circuit Court of Appeals voted against having the full court rehear his case. But Whorley found a champion -- or, to be more precise, current obscenity law found an enemy -- in Judge Roger Gregory. Gregory found it ominous that his colleagues came close to equating anime with actual child porn, and, worse, that they would imprison a man for writing down his (admittedly depraved) fantasies. Of the charges that stemmed from the emails, Gregory wrote: "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."

Obscenity law has long been less settled than it may appear. In 1973, the Supreme Court, in a 5-4 ruling, devised a three pronged test for identifying it (the so-called Miller test): Judges and juries must consider "(a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

In dissent, Justice William O. Douglas thundered: "Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing …" But the Miller test, arbitrary though it may appear, has held up.

To be sure, over the years the court has added a few footnotes: images of actual sex involving children are by definition obscene, even if it's conceivable they possess artistic merit. And, in 2002, the court struck down parts of a law that banned works that "appear" to depict minors engaged in sex (via computer simulations, for example, or actors who are of age). That standard was too broad, the court found.

If computer simulations of child pornography could be protected by the First Amendment, Judge Gregory reasoned, might not anime? But his colleagues came back with an argument that suggests just how tangled, and possibly circular, the law is today. Citing the Miller test, they argued that obscenity does not depend on the medium involved. So where does the law stand, again, on "fake" child porn? Obscene or not? Sometimes obscene?

As for those emails, the Fourth Circuit underscored something most of us don't like to think about. We may treat our virtual inboxes like private file drawers. But that's not how the law sees matters: if a jury finds that what you've typed there is prurient and sexual -- and you don't write like Nabokov -- you can go to jail.

In his parting shot, Judge Gregory urged Whorley to seek redress from the Supreme Court.