Fort Myers Cyber Crime Criminal Defense Attorneys on Child Pornography Prosecution and ‘Thought Policing’
A federal appeals court said last week that written sexual fantasies and cartoon images involving children in sexual situations is enough to trigger a child pornography conviction, Wired magazine’s Threat Level blog reported June 17. The Fourth U.S. Circuit Court of Appeals denied a new trial to a man who was convicted of child pornography possession for both of those things, as well as for owning actual child pornography. Dwight Whorley had asked for a new trial on the counts related to the fictional email and the cartoons. He is serving a 20-year prison sentence stemming from the 2006 conviction.
The cartoon images are a kind of Japanese animation called hentai, which is sexually explicit. Whorley was convicted for those images under a federal law called the PROTECT Act, which prohibits obscene images that “appear[] to be” minors engaging in sexual conduct. For the email, in which Whorley wrote down his sexual fantasies about children and sent them to other adults, he was charged with sending obscene writing over state borders. Ten judges on the Fourth Circuit’s panel agreed that those convictions should stand. That ends the case at the appeals level; Whorley’s last option is to ask the Supreme Court to hear his case.
The lone holdout, George W. Bush appointee Judge Roger Gregory, dissented at length on both counts. The goal of laws against child pornography is to prevent the exploitation of children, he said -- so obscenity laws shouldn’t apply to the cartoon images. But he saved stronger words for the email conviction, which he said was inappropriate even though the email was considered obscene. It victimized no children, Gregory wrote, and was not part of a commercial transaction, which would make it part of interstate commerce. Thus, he wrote, the government had no interest in regulating Whorley’s speech “beyond the perceived desirability of censoring these kinds of thoughts.” In essence, he argued, the majority’s decision allowed the government to police citizens’ thoughts.
As Gregory wrote, the Supreme Court has already decided that thoughts and ideas -- even unpleasant or unpopular ones -- are protected under the First Amendment. Our Naples cybercrime criminal defense attorneys want to make it clear that we don’t believe Whorley should go free; he was convicted of possessing undisputed child pornography, after all. But we also agree with Gregory that the price of free speech is occasionally tolerating private thoughts we find objectionable. Whorley did not harm children with his email or his cartoons, and harm to children is the basis the Supreme Court stated for making child pornography illegal. If a law cannot meet that threshold, precedent from our highest court says it violates the Constitution.
Balliro, Galasso, Leskovich & Seltzer defends clients accused of all types of cybercrimes, including crimes involving child pornography. Our West Palm Beach cybercrime criminal defense lawyers are not afraid to take on clients accused of unpopular or controversial behavior -- all the way to trial, if necessary. Our team of experienced former public defenders and prosecutors includes partner David Seltzer, who served in the Cyber Crime unit of the Miami-Dade state’s attorney’s office and understands how prosecutors put together Internet crime cases. Our Punta Gorda cybercrime defense lawyers will use computer forensic experts and others whenever appropriate to give our clients the best and most complete possible defense.
If you or a loved one is accused of a serious online crime, you should call BGL&S as soon as possible for a free, confidential consultation. To reach us -- 24 hours a day and seven days a week -- you can contact us online or call 1-866-ARRESTED toll-free from anywhere in Florida.
