In December, the Fourth Circuit upheld the conviction and 20-year sentence of a man who downloaded pictures, drawings, and text emails depicting minors engaged in sexual acts. Receiving obscene depictions of “a minor engaging in sexually explicit conduct” is prohibited by 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the internet.
Receiving via the internet, the court said, is unlike mere possession in one’s home, as is protected by the First Amendment and Stanley v. Georgia, but is rather trafficking in commerce and so can be constitutionally prohibited. Of course, it is very easy to inadvertently “receive” obscene materials through the internet, whether in one’s Spam folder or on a pop-up, but the court simply hoped that inadvertent access would not be targeted for prosecution, because the statute requires knowing access.
Moreover, the court held that Congress can prohibit accessing obscene text and drawings, not just pictures and videos of actual children. Though stopping child pornographers is a noble goal, the Fourth Circuit’s ruling goes well beyond targeting production and even consumption of child porn and into banning express of deviant thoughts.
Judge Gregory, writing in dissent, pointed to great works of literature that have wrestled with the taboo subjects of incest and attraction to children. He pointedly wondered if, under the majority’s ruling, Nabokov could have been convicted for emailing excerpts of Lolita. Judge Gregory worried that the majority gave Congress “the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention.”
The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.
We must not let the government’s zeal in combating child porn override our most important constitutional limitations, as it has been recently.