A couple of places on the Net (like Wired) picked up on an appellate technicality yesterday, as the Fourth Circuit declined to rehear a case decided in late 2008. The case involved a guy who was convicted of (among other things) two counts of obscenity for two fairly rare things. One was some pornographic Magna depicting children, while the other was his own child rape fantasies typed out and sent to other pedophiles via Email. Unlike traditional child pornography, neither involved any exploitation of an actual child in its production.
The Net buzz is focused on the dissent from Judge Gregory (who wrote to dissent both from the panel decision and the rehearing decision), who 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.While I agree with those sentiments on a gut level, and those of Net commentators harrumphing them, it's important to point out what the real problem is.
The real problem is that the majority's decision affirming the convictions was correct, in light of the long standing exclusion of obscenity from the protection of the First Amendment. Now, I happen to think such an exclusion can't be harmonized with First Amendment principles, but the Supreme Court has consistently disagreed. Obscenity has never enjoyed constitutional protection. If the groundswell of aghastness about this decision continues, maybe it will convince the Supreme Court to revisit the issue. I wouldn't bet on it, though, nor would I bet on a sea change in First Amendment law.