Sins of the Flesh? Obscenity Law in the Era of Virtual Reality
2014; Taylor & Francis; Volume: 19; Issue: 4 Linguagem: Inglês
10.1080/10811680.2014.955778
ISSN1532-6926
Autores Tópico(s)Digital Games and Media
ResumoAbstractIn the near future, pornography will be interactive, and people will be able to act out their fantasies in virtual reality. What may be unsettling is that some of these fantasies will be quite deviant, including rape, pedophilia and bestiality. The question is how our culture will respond to new technologies used to fulfill these deviant fantasies. This article examines the coming changes in the sex industry and the possible legal challenges that will arise. NotesHer (Annapurna Pictures 2013). See also Anthony Lane, Only Make Believe: Her, The Secret Life of Walter Mitty, and Saving Mr. Banks, New Yorker, Dec. 23, 2013, available at http://www.newyorker.com/arts/critics/cinema/2013/12/23/131223crci_cinema_lane(last visited February 18, 2014).Id.See generally Joe Williams, Spike Jonze Creates Romance for the Digital Age with Her, St. Louis Post-Dispatch, Jan. 9, 2014, available at http://www.stltoday.com/entertainment/movies/reviews/spike-jonze-creates-romance-for-the-digital-age-with-her/article_8368d59c-87d5-577c-9418-973b8b903954.html (last visited Feb. 18, 2014).See generally Peter Johnson, Pornography Drives Technology: Why Not Censor the Internet, 49 Fed. Comm. L. J. 217, 217 (1996) ("Throughout the history of new media, from vernacular speech to movable type, to photography, to paperback books, to videotape, to cable and pay-TV, to '900' phone lines, to the French Minitel, to the Internet, to CD-ROMs and laser discs, pornography has shown technology the way.").See David Yerle, The Future of Porn: A Disturbing Possibility, available at http://www.davidyerle.com/the-future-of-porn-a-disturbing-possibility (last visited Nov. 30, 2013).See Richard Kolotkin, Maggie Williams, Casey Lloyd & Earnest Halford, Does Loving an Avatar Threaten Real Life Marriage?, 5 J. of Virtual Worlds Res. 1, 3 (2012) (finding that relationships in online virtual worlds put a strain on marriages).See generally Bryan T. Camp, The Play's the Thing: A Theory of Taxing Virtual Worlds, 59 Hastings L. J. 1 (2007) (arguing that player activity within the virtual world is not gross income); Adam Chodorow, Tracing Basis Through Virtual Spaces, 95 Cornell L. Rev. 283 (2010) (assessing how to tax virtual items); Leandra Lederman, "Stranger than Fiction": Taxing Virtual Worlds, 82 N.Y.U. L. Rev. 1620 (2007) (discussing taxation issues within virtual worlds); Scott Wisniewski, Taxation of Virtual Assets, 2008 Duke L. & Tech. Rev. 0005 (analyzing tax questions pertaining to virtual assets).Amy Adler, All Porn All the Time, 31 N.Y.U. Rev. L. & Soc. Change 695, 697 (2007). See also George Weaver, Obama Administration Fails Obscenity Test, World Mag., Apr. 24,2013, available at http://www.worldmag.com/2013/04/obama_administration_fails_obscenity_test (last visited Dec. 3, 2013).See generally Lawrence v. Texas, 539 U.S. 558, 567 (2003) ("It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.").See, e.g., Morgan Bennett, Internet Pornography & the First Amendment, Witherspoon Institute, Oct. 10, 2013, http://www.thepublicdiscourse.com/2013/10/10998/ (last visited Dec. 3, 2013).See generally John David Ebert, Dead Celebrities, Living Icons: Tragedy and Fame in the Age of the Multimedia Superstar 182 (discussing the creation of an avatar after the death of Heath Ledger).At the 2014 Billboard Music Awards, Michael Jackson was brought back to life through hologram technology to perform a song from his posthumous album. The cost of the production was in the millions of dollars. See David Kravets, Minutes-Long Michael Jackson Hologram Show Cost "Multiple Millions," Arts-Technica, May 29, 2014, http://arstechnica.com/business/2014/05/minutes-long-michael-jackson-hologram-show-cost-multiple-millions/ (last visited June 1, 2014).Rape fetish is a popular subgenre in the porn industry. See Natalie Purcell, Violence and the Pornographic Imaginary: The Politics of Sex, Gender and Aggression in Hardcore Pornography 108 (2013).Sexual material with actors who appear to be minor is very popular. See generally Purcell, id. at 108 (outlining the many fetishes that appear in pornography).Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002).Id.Pub. L. No. 104–208, § 121, 110 Stat. 3009, 3028, invalidated by Ashcroft v. Free Speech Coal., 535 U.S. 234, 258 (2002) (current version at 18 U.S.C. § 2256(8)(B) (2006)); 18 U.S.C. § 2256(8)(D) (2006)).See Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108–21, 117 Stat. 650 (2006) (codified as amended in scattered sections of 18, 21 & 42 U.S.C.).See Obscene Visual Representations of the Sexual Abuse of Children, 18 U.S.C. §1446A (Westlaw 2012).See United States v. Whorley (Whorley III), 550 F.3d 326 (4th Cir. 2008), aff'g United States v. Whorley (Whorley I), 386 F. Supp. 2d 693 (E.D. Va. 2005) (sentencing defendant for 240 months for downloading thirty-four pictures depicting minors engaged in sexual acts, twenty of which were Japanese manga cartoons, and having twenty explicit emails describing his pedophiliac fantasies); United States v. Handley, 564 F. Supp. 2d 996, 1009 (S.D. Iowa 2008) (sentencing defendant for six months for receiving manga depicting pedophilia and bestiality).See Keisha April, Cartoons Aren't Real People, Too: Does the Regulation of Virtual Child Pornography Violate the First Amendment and Criminalize Subversive Thought, 19 Cardozo J.L. & Gender 41 (2013); Paula Bird, Note, Virtual Child Pornography Laws and the Constraints Imposed by the First Amendment, 16 Barry L. Rev. 161, 172-73 (2011) (arguing that the Supreme Court should deem the PROTECT Act's provision on virtual pornography overbroad); Bryan Kim-Butler, Note, Fiction, Culture and Pedophilia: Fantasy and the First Amendment After United States v. Whorley, 34 Colum. J. L. & Arts 545, 562 (2011) (arguing that the government cannot punish the freedom of thought); Mark McLelland, The World of Yaoi: The Internet, Censorship and the Global 'Boys' Love' Fandom, 23 Australian Feminist L. J. 14-15 (2001), available at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1152&context=artspapers (last accessed Dec. 1, 2013).See Miller v. California, 413 U.S. 15 (1972).See Emily Empel, The Future of Sex-5 Trends That May Completely Transform Our Sex Lives, Alternet.org, Apr. 18, 2012, http://www.alternet.org/story/155049/the_future_of_sex_5_trends_that_may_completely_transform_our_sex_lives (last visited Dec. 13, 2013).See David Yerle, The Future of Porn: A Disturbing Possibility, available at http://www.davidyerle.com/the-future-of-porn-a-disturbing-possibility (last visited Nov. 30, 2013).See Empel, supra note 24.See John Wesley Hall, Obscenity Laws? What's the Point Anymore (Not That There Was), Ark. Law., Fall 2012, at 16. Hall cites other statistics such as "Every second – $3,075.64 is being spent on pornography. Every second – 28,258 Internet users are viewing pornography. Every second – 372 Internet users are typing adult search terms into search engines." Id.See Empel, supra note 24.See Purcell, supra note 13, at 40-140.Of course, there was the prostitution industry which allowed for real people to engage in sex for money. But for most of the twentieth century prostitution has been illegal in the United States, with a few notable exceptions. It is very possible that in the next twenty years more states will legalize prostitution, especially if revenue is needed. If this occurs, many of the possible technological advances in pornography may not be legal issues. See, e.g., David McGrath Schwartz, Under Consideration: Tax Brothels, Consider Legalizing Prostitution in Las Vegas, Las Vegas Sun, Jan. 22, 2009, available at http://www.lasvegassun.com/news/2009/jan/22/senators-ideas-impose-tax-brothels-make-prostituti/ (last accessed Feb, 20 2014) (city councilman consider passing legislation to tax brothels).Famously, the porn industry is the reason VHS won the format wars over Betamax in the 1980s. See Peter Johnson, Pornography Drive Technology: Why Not to Censor the Internet, 49 Fed. Comm. L. J. 217, 222 (1996).These technological advances may be in place by 2018. See Yerle, supra note 25.Id.See Andy Campbell, Motion Controlled Pornography: Gamelink's Interactive Videos Could be the Future of Self-Love, Huffington Post, Jan. 11, 2013, http://www.huffingtonpost.com/2013/01/11/motion-controlled-pornogry-gamelink_n_2456338.html (last accessed December 1, 2013).Id. Estimates are that about 11% of Tumblr sites are pornographic. Id.See M.T. Whitty, Liberating or Debilitating? An Examination of Romantic Relationships, Sexual Relationships, and Friendships on the Net, 24 Computers in Human Behavior 1837 (2008); Maeve Duggan, Is Social Media the New Wingman for Singles?, Pew Research Center (Nov. 12, 2013), http://www.pewresearch.org/fact-tank/2013/11/12/is-social-media-the-new-wingman-for-singles/(last accessed Feb. 3, 2014).There are also hundreds of Web sites dedicated to amateur pornography that allow users to upload pictures and videos of themselves. See Purcell, supra note 13, at 109 (listing amateur sites such as PornHub, Xvideos, YouPorn and PornoTube).Christian La Du, PinSex is the Pinterest of Porn and it's Awesome, Elite Daily, Dec. 20, 2013, http://elitedaily.com/news/technology/probably-invented-earlier-welcome-pinsex/ (last accessed Feb. 15, 2014).See E.J. Dickson, Is the Future of Porn Social?, Daily Dot, Nov 11, 2013, http://www.dailydot.com/lifestyle/pinsex-porn-social-media-pinterest/ (last accessed Feb. 16, 2014). Other social media sites such as Pinterest, Facebook and Twitter heavily self-regulate pornographic material. Id.See id.See Mark Brooks, How Has Internet Dating Changed Society (Internet Dating Executive Alliance White Paper 2011), available at http://www.onlinepersonalswatch.com/files/idea-white-paper-final-review-copy-only-updated-1-19-2.pdf (last accessed Feb. 20, 2014).Some commentators have called this our "sex-ond life" a play on the word "Second Life" referring to virtual world game where people create avatars which they control. See Empel, supra note 24. See also David Kirkpatrick, Second Life: It's Not a Game, Jan. 23, 2007, CNN Money, http://money.cnn.com/2007/01/22/magazines/fortune/whatsnext_secondlife.fortune/ (last accessed Feb. 20, 2014).See Eric T. Gerson, Video Game Violence and the Technology of the Future, 76 Brook. L. Rev. 1121, 1140 (2011) (describing the use of virtual reality in video games).See Yerle, supra note 25.See id.See Bernadette Koles & Peter Nagy, Who is Portrayed in Second Life: Dr. Jekyll or Mr. Hyde?, 5 J. of Virtual Worlds Res. 1, 1–17 (2012) (examining how identities are constructed in virtual worlds versus the real world).See Kirkpatrick, supra note 42.See id.For a video of Emily, see The Emily Project, Image Metrics, http://www.youtube.com/watch?v=HJSw5gGYW6A (last accessed Feb. 1, 2014).This, of course, may violate right-to-publicity laws if the game allows for users to download celebrity pictures to use for avatars. The technology may allow for programmers to block avatars that resemble celebrities from being created, but of course, as with current copyright issue, users will always find a way around this. For examples, sports video games now allow users to create avatars that resemble famous athletes. See generally Krista Correa, All Your Face Are Belong to Us: Protecting Celebrity Images in Hyper-Realistic Video Games, 34 Hastings Comm. & Ent L. J. 93 (2011) (arguing that current right to publicity law is not sufficient enough to protect celebrities in virtual reality); Matthew Matzkin, Getting Played: How the Video Game Industry Violates College Athletes' Rights of Publicity by Not Paying for Their Likenesses, 21 Loyola of L. A. Ent. L. Rev. 227 (2001) (arguing that college athletes should be paid for uses of their likeness in video games).See generally Tigran Palyan, Common Law Privacy in a Not So Common World: Prospects for the Tort of Intrusion Upon Seclusion in Virtual Worlds, 38 Southwestern L. Rev. 168 (2008) (arguing that privacy torts should be applied to virtual worlds).See Annemarie Bridy, Why Pirates (Still) Won't Behave: Regulating P2p in the Decade After Napster, 40 Rutgers L. J. 565, 566 (2009)(arguing that the best approach to piracy is not forcing users to behave but find the underlying cause of piracy).See John Boggs, Virtual Pedophilia Report Bad News for Second Life, TechCrunch, Oct. 30, 2007, http://techcrunch.com/2007/10/30/virtual-pedophilia-report-bad-news-for-second-life/ (last accessed Feb. 23, 2014) (reporting that British authorities may get involved with virtual pornography in the virtual reality site).These types of topics are found in underground and mainstream pornography. See Purcell, supra note 13, at p. 105.See Roth v. United States, 354 U.S. 476 (1957).Roth overruled the Hicklin Rule which was adopted from the British courts. Under the rule, material was obscene if it "deprav[ed] or corrupt[ed] those whose minds are open to such immoral influence and into whose hands a publication of this sort may fall" – in other words – if it affected the most susceptible readers. Regina v. Hicklin, L.R. 3 Q.B. 360 (1868).In addition to Roth, see Ginsberg v. New York, 390 U.S. 629 (1968) (upholding a conviction of selling indecent material to minors); Stanley v. Georgia, 394 U.S. 557 (1968) (upholding the right to possess obscenity); Redrup v. New York, 386 U.S. 767 (1967) (upholding a conviction for pandering obscenity); Memoirs v. Massachusetts, 383 U.S. 413 (1966) (adding "patent offensivenesss" and "utterly without redeeming social value" to the obscenity test); Ginzburg v. United States, 383 U.S. 463 (1966) (upholding a conviction of obscenity on the basis of the way it was marketed); Jacobellis v. Ohio, 378 U.S. 184 (1964) (holding that the obscenity test would be a national standard); Manual Enterprises v. Day, 370 U.S. 478 (1963) (holding that gay magazines were not patently offensive).378 U.S. 184 (1964) (reversing the conviction of a movie deemed to be obscene).Id. at 197 (Stewart, J., concurring). Stewart's full quote was: "I shall not today attempt further to define the kinds of material I understand to be [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it." Id.413 U.S. 15 (1972). Marvin Miller was charged under California obscenity statutes when he sent unsolicited pornographic materials to people's homes. The defendant's sentence was vacated, and the case was remanded.Id. at 24. The Court removed the burden for the prosecution to prove that material was "utterly without redeeming social importance." Id. at 22.394 U.S. 557 (1969). Police had a warrant to search Robert Eli Stanley's home for gambling materials, but instead found eortic films. He was arrested for possessing obscenity.See id. Justice Thurgood Marshall also quoted the dissent from the lower court decision: "I cannot agree that mere private possession of [obscene] literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual." Id. at 562 n. 7 (quoting State v. Mapp, 166 N.E.2d 387, 393 (1960)).Id. at 564 ("It is now well established that the Constitution protects the right to receive information and ideas.").Id. at 563. Justice Marshall also cited Roth: "'Ceaseless vigilance is the watchword to prevent erosion [of First Amendment rights] by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.'" Id. (citing Roth v. U.S. 354 U.S. 476, 488 (1957)).402 U.S. 363 (1971).It was decided on the same day as United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971).402 U.S. 363 (1971).Two years later, in United States v. Twelve 200-Foot Reels of Super 8mm Film, 413 U.S. 123 (1973), the Court held that a person does not have the right to bring obscenity into to the country – even if only for private use.See id. at 128.458 U.S. 747 (1982). Paul Ferber was an adult bookstore owner who sold films depicting young boys masturbating. Id. at 751-52.Id. at 752. Under contemporary obscenity laws, Ferber could not be prosecuted because masturbation was not patently offensive. Id. at 761. In a child pornography case, "[A] trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole," because children are involved. Id. at 764.The Court stated that child pornography has a terrible effect on the "physiological, emotional, and mental health of the child[.]" Id. at 757-58.Id. at 756-64.Id. at 759.Id. at 762 ("It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.").Id. at 763.Id. at 764.Osborne v. Ohio, 495 U.S. 103 (1990). There was an exception in the law for parents who possessed non-sexual, but nude, photos of their children.There are, "Compelling interests in protecting the physical and psychological well-being of minors and in destroying the market for the exploitative use of children by penalizing those who possess and view the offending materials." Id. at 109.See Amy Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 925-26 (2001) (arguing that contemporary child pornography has extended well beyond the protection of child abuse to punishing speech based upon how people may react to it).458 U.S. at 764-65."Obscenity law seemed to be in its death throes, a doctrine largely abandoned by prosecutors[.]" Adler, supra note 8, at 697.See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 239-40 (2002).Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3028, invalidated by Ashcroft v. Free Speech Coal., 535 U.S. 234, 258 (2002). Other contemporary legislation included the Communications Decency Act of 1996, Pub. L. No. 104, 110 Stat. 133 (codified as amended at 47 U.S.C. § 223, portions invalidated by Reno v. ACLU, 521 U.S. 844 (1997); Child Online Protection Act (COPA), 47 U.S.C. § 231 (1998), invalidated by A.C.L.U. v. Ashcroft, 542 U.S. 656 (2004); Children's Internet Protection Act (CIPA), Pub. Law No. 106-554, §§ 1701-1741, 114 Stat. 2763A-336 to -351 (2000) (codified at 20 U.S.C.A. §9134 (2000), 47 U.S.C.A. §254 (Westlaw 2012)).Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3028, invalidated by Ashcroft v. Free Speech Coal., 535 U.S. 234, 258 (2002) (current version at 18 U.S.C. § 2256(8)(B) (2006)); 18 U.S.C. § 2256(8)(D) (2006).Free Speech Coal., 535 U.S. at 239-40.See generally Child Pornography Prevention Act of 1996, H.R. 3610, invalidated by Free Speech Coal., 535 U.S. 234 (2002)]. The government justified the law against virtual child pornography by arguing that virtual child pornography whets the appetite of pedophiles, it can be used to lure children, and that it is indistinguishable from real child pornography. Free Speech Coal., 535 U.S. at 241-42. "The CPPA's penalties are indeed severe. A first offender may be imprisoned for 15 years. § 2252A(b)(1). A repeat offender faces a prison sentence of not less than 5 years and not more than 30 years in prison." Id. at 244.See, e.g., Wade T. Anderson, Criminalizing "Virtual" Child Pornography Under the Child Pornography Prevention Act: Is it Really What it Appears to Be?, 35 U. Rich. L. Rev. 393 (2001) (arguing that the CPPA violates the First Amendment.) The Court had never considered whether virtual child pornography was per se illegal. Id. at 240.See id. The Court used the overbreadth doctrine to strike down the law. Id. at 256, 258. This was the first time the Court held that a child pornography law violated the First Amendment. See Adler, supra note 81, at 962.535 U.S. at 240 ("[T]he CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.").Id. at 249-51. The Court held that Ferber was concerned with "child pornography was based upon how it was made, not on what it communicated." Id. at 250.Id. at 252-53: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor's unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults. Id. at 253 ("The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.").Justice Kennedy outlined the use of child sexuality throughout the history of fictional literature and movies: William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age .… The movie, Traffic, which was nominated for Best Picture… portrays a teenager [who eventually] trade[s] sex for drugs… American Beauty [portrays] a teenage girl engag[ing] in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. Id. at 247-48.Id. at 253.Id.Pub. L. No. 108-21, 117 Stat. 650 (2006) (codified as amended in scattered sections of 18, 21, and 42 U.S.C.).Free Speech Coal., 535 U.S. at 240.18 U.S.C. §2256(8), (9) and (11) (Westlaw 2012).18 U.S.C. §2256(11)(Westlaw 2012).Id.Obscene Visual Representations of the Sexual Abuse of Children, 18 U.S.C. §1446A (Westlaw 2012).This part of the act was of undoubtedly in response to the U.S. Supreme Court's decision in Free Speech Coal. But the Senate Report also reiterated the government's argument of the "virtual porn defense," which was also argued in Free Speech Coalition: [G]reat[] impair[ment of] the government's ability to bring successful child pornography prosecutions .… Since the ruling in [Free Speech Coalition], defendants in child pornography cases have consistently claimed that the images in question could be virtual. By raising this "virtual porn defense," the government has been required to find proof that the child is real in nearly every child pornography prosecution. S. Rep. No. 108-2, at 4 (2003).The distinguishing section of the PROTECT Act reads: "[K]nowingly possesses 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." 18 U.S.C. § 1466A(B).The PROTECT Act does not explicitly bar possession of virtual child pornography, but as illustrated in Worley, one rarely possesses it without receiving it. United States v. Whorley (Whorley III), 550 F.3d 326 (4th Cir. 2008)18 U.S.C. §2252; 18 U.S.C. §2252A; 18 U.S.C. §2256 (Westlaw 2012). The defendant will be punished pursuant to the U.S. Sentencing Guidelines. S. Rep. No. 108-12 at 13 (2003). Those who are convicted as child pornographers must register as sex offenders, maximum penalty of twenty years for first time offenders, and double that for those with prior convictions. 42 U.S.C. §16911, 16913; 18 U.S.C. §2252(b); 18 U.S.C. §2252A(b) (Westlaw 2012).).(Whorley III), 550 F.3d 326 (4th Cir. 2008), aff'g United States v. Whorley (Whorley I), 386 F. Supp. 2d 693 (E.D. Va. 2005); United States v. Whorley (Whorley II), 400 F. Supp. 2d 800 (E.D. Va. 2005), reh'g and reh'g en banc denied, United States v. Whorley (Whorley IV), 569 F.3d 211 (4th Cir. 2009), cert. denied, Whorley v. United States (Whorley V), 130 S. Ct. 1052 (2010).Whorely III, 550 F.3d at 330 (including "[a]ctual intercourse, masturbation, and oral sex, some of it coerced").The defendant only wrote and sent one of the twenty emails and all of them were sent between adults. Id. at 339-40.Whorley was charged with seventy-four counts under 18 U.S.C. §1466A(a)(1) for receiving the anime cartoons visual depictions of minors engaged in sexual activity, twenty counts under 18 U.S.C. §1462 for receiving obscene emails, and fifteen counts under 18 U.S.C. Sec. 2252(a)(2) for pictures of actual children engaged in sexually explicit conduct. Id. at 331.Whorely was on probation after serving time for possession of real child pornography. Additionally, fourteen of the seventy-five counts against the defendant were for child pornography.Id. at 335. Whorley argued that "no notice that viewing the cartoon images on [a] computer screen was [an] unlawful [act]." Id. at 334.Id. at 332.Id. at 336-37. This included the text-only emails.Id. at 332-33 ("[F]ocus of the statute's prohibition is on the movement of obscene matter in interstate commerce, not its possession in the home."). The Fourth Circuit did not conduct a legal analysis on whether the material rose to the level of obscenity or if it is constitutional to punish obscenity at the same level as child pornography or whether the PROTECT Act chilled free speech. Id. at 330. In 2010, the Supreme Court denied certiorari and essentially affirmed the constitutionality of the Section 1446A of the Protect Act. Whorley v. United Stated, 30 S.Ct. 1053 (2010) (denying cert.).564 F. Supp. 2d 996, 1009 (S.D. Iowa 2008).Handley was indicted under §1466A(a) and §1466A(b). Id. at 988-89.A vigilant postal service worker in Iowa checked Handley's mail and found the material that was shipped in from Japan. Id. at 1000.Id. at 999. These images were described as: "[V]isual depictions, namely drawings and cartoons, which depicted graphic bestiality including sexual intercourse, between human beings and animals such as pigs, monkeys, and others." Id at 996.Id. The court conducted no legal analysis as to whether the cartoons depicting pedophilia and bestiality rose to the level of obscenity. The Southern District Court of Iowa court did find that the PROTECT Act's particular sections on bestiality were unconstitutional because they did not contain the entirety of the Miller Test, just the third prong, thus Congress had circumvented the judicial process. Id. at 1009.Id. at 1003.Id.Id. Handley also challenged the PROTECT Act as unconstitutional because it punished the possession of obscene material; such possession was protected by the ruling in Stanley. The court disagreed, stating that Handley was being punished for receipt and possession of obscene material that has traveled through interstate commerce, which was not protected. Thus, Stanley only protected in-home possession of obscene material – presumably only obscene material that is homemade. The court held that "finding that such a distinction would be akin to allowing a drug-user to import illegal drugs for private consumption as long as he was not distributing them." Id. at 1001.Sentencing Documents-Judgment at 1, United States v. Handley, 584 F. Supp. 2d 996 (2010) (1:07-cr00030-JEG-RAW) (Doc. 102).Id. at 3.See Paula Bird, Note, Virtual Child Pornography Laws and the Constraints Imposed by the First Amendment, 16 Barry L. Rev. 161, 172-73 (2011) (arguing that the Supreme Court should deem the PROTECT Act's provision on virtual pornography as overbroad). See also Keisha April, Cartoons aren't Real People, Too: Does the Regulation of Virtual Child Pornography Violate the First Amendment and Criminalize Subversive Thought, 19 Cardozo J.L. & Gender 41 (2013); Bryan Kim-Butler, Note, Fiction, Culture and Pedophilia: Fantasy and the First Amendment after United States v. Whorley, 34 Colum. J. L. & Arts, 545, 562 (2011) (arguing that the government cannot punish the freedom of thought).See Chrysanthi Leon, Sex Fiends, Perverts, and Pedophiles: Understanding Sex Crime Policy in America (2012) (arguing that that the severity of sex crime policy is generated by a moral panic brought on by media attention); Sian Nicholas & Tom O'Malley, Moral Panics, Social Fears, and the Media: Historical Perspectives (2013) (case studies examining how the moral panics come into existence).Communications Decency Act of 1996, Pub. L. No. 104-104, 110 Stat. 133 (codified as amended at 47 U.S.C. § 223), certain provision invalidated Reno v. ACLU, 521 U.S. 844 (1997).Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3028, invalidated Ashcroft v. Free Speech Coal., 535 U.S. 234, 258 (2002).Child Online Protection Act, 47 U.S.C. § 231 (1998), invalidated ACLU v. Ashcroft, 542 U.S. 656 (2004).Pub. Law No. 106-554, §§ 1701-1741, 114 Stat. 2763A-336 to -351 (2000) (codified at 20 U.S.C.A. §9134 (2000), 47 U.S.C.A. §254 (Westlaw 2011)). With the exception of the Children's Internet Protection Act, all the acts have been overturned by the Supreme Court as being overbroad, thus an unconstitutional infringement on free speech.See, e.g., FCC v. Fox Television Stations, 556 U.S. 502, 508-09 (2009) (explaining the changes in indecency rules in 2004).See Amy Adler, The Perverse Law of Child Pornography, 101 Colum. L. Rev. 209 (2001) (arguing that the argument of "protecting the children" has been used to chill legal speech).See Adler, supra note 8, at 697."Obscenity law seemed to be in
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