One recent occasion for reflection on obscenity, the internet, and art

The defendant in United States v. Whorley downloaded or otherwise received dozens of pictures and a handful of email messages depicting or involving children in various sexual situations.[1] Some of these representations were of actual children.[2] Others were of entirely fictional children, the figments of someone’s imagination: allegedly obscene cartoon illustrations and descriptions of fantasies about children.[3] The defendant was prosecuted and convicted under federal child pornography and obscenity laws and sentenced to 240 months in prison.[4] A Fourth Circuit panel upheld his convictions. There was one dissenter, Judge Gregory, who concurred with the upholding of the convictions relating to actual children but dissented to the upholding of the rest.

In the 1990s, “obscenity law seemed to be in its death throes, a doctrine largely abandoned by prosecutors.”[5] How did we get from there to Judge Gregory’s 2008 dissenting opinion in Whorley that “[t]oday, under the guise of suppressing obscenity—whatever meaning that term may encompass—we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasy”?[6]

The cases involving child pornography are too complicated to explain fully here, but what is notable for this case is how the “obscene” now melts into “child pornography,” in which what cannot be prosecuted under child pornography doctrine can be prosecuted under obscenity law.

In 1982 the category of child pornography was created in Supreme Court case law in New York v. Ferber, and its exclusion from the protection of the First Amendment was justified by the necessity to protect “the welfare of the children engaged in its production.”[7] Distributing “photographs and film depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children,” the Court said.[8]

Twenty years later, the Supreme Court considered the Child Pornography Prevention Act (CPPA), which prohibited virtual child pornography, sexually explicit images that appear to depict minors but were produced without using any children, as well as sexually explicit images that are pandered as child pornography even if they are not. The specific language of the Act prohibited “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” as well as the pandered images.[9] The Court found these provisions unconstitutional in Ashcroft v. Free Speech Coalition. “In contrast to the speech in Ferber, speech that itself is the record of sexual abuse,” Justice Kennedy wrote for a five-Justice majority, “the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children.”[10] The Court held that the CPPA was unconstitutionally overbroad—the first time the Court struck down child pornography legislation on these grounds. The Court read Ferber to be focused on speech which “in effect … was a proximate link to the crime from which it came,” and Osborne v. Ohio, which upheld the criminalization of mere possession of child pornography, to be “anchored … in the concern for the participants, [the] victims … .”[11]

In direct response, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act.[12] The Act added a new obscenity offense to the U.S. Code, Section 1466A(a)(1), which subjects to criminal prosecution “any person who knowingly produces, distributes, receives, or possesses with intent to distribute, 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.”[13] Obscene materials have long been unprotected by the First Amendment; in Roth v. United States the Court said “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance … obscenity is not within the area of constitutionally protected speech.”[14] The standard for obscenity that reigns to this day was first articulated by the Court in Miller v. California in 1973.[15]

Unlike the Ferber definition of child pornography as “intrinsically harmful” to the minors involved in its production, the Miller test for obscenity needs no “victims” and is so general as to encompass “patently offensive” exhibitions of “sexual conduct” appealing to the “prurient interest.”[16] Obscenity law was therefore an attractive avenue for getting around the problems that resulted from the decision in Free Speech Coalition. As one commentator notes, this revision of existing obscenity law “has basically reinstated the ban on virtual child pornography struck down [in Free Speech Coalition] but has refashioned it as an obscenity law to avoid having to prove actual harm to minors.”[17] Add to this an intense cultural fixation on child sexual abuse.[18] Obscenity law was almost dead in the 1990s,[19] but in light of the difficulty of drafting constitutionally sound legislation and the intensity of emotion and interest on pedophilia, obscenity has returned in cases like Whorley, as a means of prosecuting…something.

Amy Adler skillfully argues that “[c]hild pornography has become a thought crime.”[20] Thinking, looking, and doing have become conflated. Whorley represents this criminalization of thoughts, and although his sleazy emails may not seem very creative or important, they have serious implications for art in an internet society.

First, the case should highlight the problems with obscenity law in general. The case is strong that we either pick the protection of art, or the protection of obscenity law; we cannot have both.[21] For me, at least, art is the preferable choice.[22]

Secondly, art’s intersection with the internet has frightening implications for a society that doesn’t much value postmodern art to begin with. This is because, as Kerstin Mey has said, “[t]he internet has ‘exposed’ an expanded territory for pornography, violence, and disease.”[23] The growth in certain nearly-taboo areas of the internet might be related to “the still existing and in many ways closely guarded repression of sexuality (and violence) in society at large, in particular minority and ‘deviant’ practices.”[24] It might seem old hat to care, but we should.

Word count: 998

[1] 550 F.3d 326 (4th Cir. 2008).

[2] Id. at 331.

[3] Id.

[4] Id.

[5] Amy Adler, All Porn All the Time, 31 N.Y.U. Rev. L. & Soc. Change 695, 697 (2007).

[6] Whorley, 550 F.3d at 353 (Gregory, J., concurring in part and dissenting in part).

[7] 458 U.S. 756, 764 (1982).

[8] Id. at 759.

[9] 18 U.S.C. § 2256(8)(B).

[10] 535 U.S. 234, 250 (2002).

[11] Id. at 250.

[12] Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (codified as amended in scattered sections of 18, 21, and 42 U.S.C. (2006)). See also United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 1854 (Souter, J., dissenting) (“there is no justification for saving the [PROTECT] Act’s attempt to get around our holdings.”).

[13] 18 U.S.C. § 1466A(a)(1).

[14] 354 U.S. 476, 484-85 (1957). What the Court had in mind as “obscene” was “a shameful or morbid interest in nudity, sex, or excretion [which] goes substantially beyond customary limits of candor in description or representation of such matters.” Id. at 487 n.20 (quoting MODEL PENAL CODE § 207.10(2) (Tent. Draft No. 6, 1957).

[15] 413 U.S. 15 (1973). The test stated three guidelines for determining whether a work was obscene and thus unprotected:(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. Id. at 24.

[16] The Miller test and obscenity law in general has been criticized. See, e.g., Amy Adler, Note, Post-Modern Art and the Death of Obscenity Law, 99 YALE L.J. 1354 (1990); Andrew Koppelman, Does Obscenity Cause Moral Harm?, 105 COLUM. L. REV. 1635 (2005); Steven G. Gey, The Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86 MICH. L. REV. 1564 (1988); David A. J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45 (1974).

[17] See Gabrielle Russell, Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, 98 J. CRIM. L. & CRIMINOLOGY 1467, 1484-85 (2008).

[18] See, e.g., James R. Kincaid, Erotic Innocence: The Culture of Child Molesting (1998).

[19] See Adler, supra note 5, at 697.

[20] Amy Adler, Inverting the First Amendment, 149 U. PA. L. REV. 921, 995 (2001).

[21] See generally Adler, supra note 16 (arguing this point).

[22] See, e.g., S Brent Plate, Blasphemy: Art That Offends (2006).

[23] Kerstin Mey, Art & Obscenity 146 (2007).

[24] Id. at 147.

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