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U.S. Appeals Court Declines to Hear Dwight Whorley's Case

The judges of the U.S. Court of Appeals for the Fourth Circuit have voted against reviewing the 2006 conviction of Virginia resident Dwight Whorley for possessing child pornography, including anime images, and sending obscene e-mail messages that included textual descriptions of sexual conduct involving children. Last year, when the case was first appealed to the court, two judges voted to uphold the conviction, with one voting against. The decision to decline rehearing it "en banc" (by all of the judges currently in office) was supported by 10 of them. One, Judge Roger L. Gregory, who also cast the earlier dissenting vote and wrote an opinion in support of Whorley's right to possess pornographic images depicting minors (but not actual children) as long as he did it in the privacy of his home, cast the lone vote to accept.

In his six-page dissenting opinion from the ruling, Gregory primarily focuses on the portion of Whorley's conviction that arose from him sending obscene e-mail messages about sex with children to other consenting adults. He argues that a conviction for this "restricts the use of today's dominant medium for exercising freedom of speech." However, Gregory also addresses the portion of the conviction that arose out of the prohibition on possessing obscene images (such as comics or pictures) of minors that do not involve actual real children, and urges Whorley's attorney to petition the Supreme Court to hear the case and decide on the legality of both points.