Apparently, some fiction does not enjoy first amendment protection.
Consider the case of Dwight Whorley. This Virginia man authored an icky pornographic story that included pedophilia, then emailed his fantasy to likeminded internet friends, Wired reports. Whorley was convicted for possessing obscene Japanese manga and for possession of a filthy piece of print -- his pedophiliac fantasy.
The 4th Circuit Court of Appeals has declined to hear his case, setting the stage for a Supreme Court Appeal.
On the one hand, the production of written kiddie porn probably does hurt children by helping to create an atmosphere that suggests that it's ok, or by helping condition a person's orgasm to an illegal act that threatens the safety children. On the other hand, Whorley's being prosecuted for writing down a private fantasy and sharing it with others, an act that any writer will be familiar with.
The whole situation makes me uncomfortable. I generally think of writing as a safe space to experiment with concepts, situations, and characters that might make me uncomfortable in real life. This case pushes that conception to its limit.
I find Whorley's fantasies reprehensible, but the idea that the law could punish someone for expressing their feelings, no matter how deviant and disgusting, disturbs me as a writer.
I'll be interested to read what happens next.