Even grotesque fantasies should not be criminalised

In May 2009, Iowa resident Christopher Handley, a collector of comic books, pled guilty to federal charges of importing and possessing obscene cartoon drawings of children; he faced a maximum prison sentence of 15 years, for a crime involving neither actual children nor actual child porn.

A few weeks later, a Tennessee prosecutor charged Michael Wayne Campbell with aggravated sexual exploitation of a minor, for photo-shopping the faces of three girls on to the nude bodies of three adult women. How might this constitute a crime (outside of Iran)? The prosecutor explained: ‘When you have the face of a small child affixed to a nude body of a mature woman, it’s going to be the state’s position that this is for sexual gratification and that this is simulated sexual activity.’

It is also a crime – a federal crime – to share your sexual fantasies about children in private communications with other adults. The US Fourth Circuit court of appeals declined to review the conviction of Dwight Whorley for sharing fantasies about sexually abusing children in purely textual email exchanges between consenting adults. Like Christopher Handley, Whorley was also convicted of receiving obscene Japanese cartoon drawings of children. Be careful what you imagine.

Dwight Whorley is a decidedly unappealing defendant: a convicted sex offender, he had received sexually explicit photographs of actual as well as imaginary children. But while his record and his traffic in actual child porn makes him undeserving of much sympathy, it also made the government’s troubling case against his fantasy life unnecessary: his actual child-porn offences were sufficient to convict and imprison him. Nor does the perverseness of Whorley’s imaginings justify their prosecution. Our right to fantasise ought not be contingent on the moral content of our characters or fantasies; and if Whorley can be imprisoned for email discussions of repellent sexual fantasies, then so can you.

At least one federal judge was deeply troubled by that case. Dissenting from the Fourth Circuit’s refusal to rehear Whorley’s appeal, Judge Gregory encouraged him to seek Supreme Court review. ‘The (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 governmental intrusion into individual freedom of thought are incredibly worrisome’, Gregory wrote.

Equally worrisome is the likelihood that the Supreme Court would not accept this case for review, much less rule in Whorley’s favour, even though the prosecution of people for sexual fantasies, or thought crimes – speech involving no illicit conduct and no conspiracies, solicitations, or attempts to engage in illicit conduct – was considered unconstitutional by the Supreme Court as recently as 2002. In Free Speech Coalition v Ashcroft, in a 6-3 decision, the Supreme Court struck down the Child Pornography Prevention Act bans on producing or possessing non-obscene, virtual (including computer-generated) child porn. Invalidating these provisions did not require a subtle or arcane legal analysis; it required only a basic understanding of First Amendment freedoms.

The US government may not criminalise speech based on claims about its indirect potential harm, as the Supreme Court stressed: ‘The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.’ (And, in this case, even the tendency of virtual porn to encourage child abuse was unproven.) ‘The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought’, Justice Kennedy wrote for the majority.

That was then. In 2008 Justice Kennedy joined the majority in a 7-2 decision that effectively overruled the defence of free speech he had offered a mere four years earlier. In Williams v US, the Court upheld the PROTECT Act, which includes a ban on pretending to traffic in sexually explicit images of actual children or obscene virtual child porn. Really. (PROTECT is an acronym for the shamelessly entitled Prosecutorial Remedies and Other Tools to end the Exploitation of Children Act of 2003, which was enacted in response to the Court’s decision in Free Speech Coalition v Ashcroft.)

In other words, having held that Congress could not criminalise production or possession of all virtual child porn, the Court held that it could criminalise soliciting or advertising virtual child porn in the mistaken belief or with intent to persuade others to believe that it’s the real thing. (The PROTECT Act also criminalises obscene virtual child porn.) The soon-to-be-missed Justice Souter pointed out the obvious, in a dissent joined only by Justice Ginsburg: allowing prosecutions for pandering or soliciting non-obscene, virtual images dramatically undermines First Amendment protections that the Court extended to them only a few years ago.

Dwight Whorley’s conviction was based, in part, on the PROTECT Act (he was the first person convicted under it); his conviction for sending ‘obscene’ emails to other adults rested on an older obscenity statute, but it might easily be justified by the same impulse to prohibit virtual child porn that underlies the PROTECT Act and imprisons people for pretending to pander child porn or actually collecting obscene cartoons. It doesn’t take a great leap of law to criminalise discussion of a cartoon – the depiction of a desire or an idea – once you’ve criminalised possession of it.

Outside the respective subcultures of free-speech advocates, comic-book collectors, and paedophiles, not many people will mourn the loss of a right to imagine or discuss abusing children. But the rationales for censorship developed in these cases can always be extended, by carving out additional exceptions to the First Amendment. In fact, they could conceivably be extended next year, when the Supreme Court decides whether, like child porn, depictions of cruelty to animals should be denied constitutional protection. In the autumn, the Court will consider the case of Robert J Stevens, convicted and sentenced to 37 months under a federal law criminalising the production, sale, or possession of material depicting animal cruelty; Stevens’ crime was selling videos of pit bulls on the attack.

His conviction was reversed by the Third Circuit court of appeals, which declined to create a new category of unprotected speech. The federal ban on animal cruelty depictions was based in part on assumptions about their indirect harm, the Third Circuit observed; the government claimed an ‘interest in discouraging individuals from becoming desensitised to animal violence generally, because that may serve to deter future anti-social behaviour toward human beings.’ If the Supreme Court rules that Congress may criminalise speech in the mere hope of deterring ‘future anti-social behaviour’, what speech may Congress not restrict? It’s hard (and may eventually be illegal) to imagine.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) This article was originally published on theatlantic.com last year.

Editor’s note: Since this article was written, the Supreme Court has heard the animal cruelty case – US v Stevens – and in an 8-1 decision it struck down the ban on depictions of animal cruelty as unconstitutionally overboard, declining to create a new animal-cruelty exception to First Amendment protections. The US government (represented by Elena Kagan) had argued that ‘whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs’ – but the Court condemned this proposed ‘test for First Amendment coverage’ as ‘startling and dangerous’.)

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