44 Pages Posted: 5 Dec 2012 Last revised: 6 Dec 2012
Date Written: May 13, 2011
Much of the discussion in the majority and dissenting opinions in Fourth Circuit case United States v, Whorley, 550 F.3d 326 (4th Cir. 2008) focuses on first amendment freedom of expression. However, there is in my view an evasiveness in the handling of this case and cases like it. Cultural processes of disavowal and neurosis are central to cases like Whorley, and the courts both respond to those cultural processes and participate in them. My inquiry into the court's opinions in Whorley and a Seventh Circuit case, Doe v. City of Lafayette, Indiana, 377 F.3d 757 (7th Cir. 2004) (en banc) attempts to go beyond a legal analysis of obscenity law into what scholars in various fields have called the "cultural unconscious" of law.
Part I of this article explains the legal framework that gave rise to Whorley by examining the expansion of obscenity law into child pornography law, and closely examines the appeals court's majority opinion in Whorley. In Part II, this article discusses the issue of punishment in Whorley, considering at length the dissent's claim that the holding in Whorley criminalizes thoughts, violating the First Amendment. Part II also examines the figure of the "predator" in the courts. This analysis is aided by reading Whorley alongside Doe v. City of Lafayette, Indiana, another case that arguably criminalizes thoughts in the putative service of protecting children. Finally, Part III gives Whorley consideration more generally in the context of the chilling effects it may have on artistic expression that legitimately challenges how we think about children, sexuality and the freedom of expression.
Keywords: First Amendment, 1st, Obscene, Free Speech, Freedom of Expression, Free Expression, Freedom of Speech, Pornography, Child Pornography, Obscenity, Criminal Law, Federal Criminal, Obscenity Law, Artistic Expression, Art, Constitution, Constitutional, Freud, Psychoanalysis, Foucault, Jacqueline Rose
JEL Classification: B30, B31, I20, I21, I29, K00. K10, K14, K19, K10, K30, K40, K41, K42, K49
Suggested Citation: Suggested Citation
Kim-Butler, Bryan, Fiction, Culture and Pedophilia: Fantasy and the First Amendment after United States v. Whorley (May 13, 2011). Columbia Journal of Law & the Arts, Vol. 34, No. 3, p. 545, Spring 2011. Available at SSRN: https://ssrn.com/abstract=2184350