The United States Court of Appeals (Fourth Circuit) declined an En Banc review of Dwight Whorley's 2006 conviction. Whorley was convicted of the possession of child pornography, including manga images, and sending obscene e-mails that included descriptions of sexual conduct involving children. When the case was first appealed to the court last year, two judges voted to uphold the conviction, one judge voted against it.

Ten judges supported the decision to decline hearing the case en banc, while Judge Roger L. Gregory, the one judge who voted against upholding the conviction in the first appeal, cast the only vote to accept. Gregory wrote a six-page opinion in support of Whorley's right to possess pornography depicting minors (so long as they are not actual children), so long as it was done in the privacy of his own home. Gregory's opinion piece focuses on the portion that arose from obscene e-mails to other consenting adults, arguing that a conviction on the act restricts freedom of speech in today's dominant medium. The opinion piece also addresses the portion of the conviction that came from the possession of obscene images of minors that do not involve real children. Gregory urges Whorley's attorney to petition the Supreme Court to hear the case and judge on the legality of the ruling.