Man Sentenced to Six Months in Prison for Importing Obscene Manga

I also find it amusing that there would be a partial amendment to the act which would consider relative issues, such as what "the defendants community would consider obscene." I would think in any case, child exploitation is flat out wrong, so why revise something that is flat out wrong. So when revisions and what-not come into play, that sometimes means that the law has some major fundamental issues. Interestingly enough, this kind of constant revision to naturalistic law looks an awful lot like the evolution of segregation laws post bellum. Like segregation, it is something that was just morally wrong, much like child exploitation. Naturalistic laws come into effect to counter (or perpetuate) those wrongs, but do so in an almost unfair way.

I assume that the amendment is necessary strictly as a legal matter to bring the Act's definition of "obscenity" into conformity with current first amendment doctrine.

Obscene expression is not protected by the first amendment, so it can be criminalized.

However, the Supreme Court's definition of "obscenity" includes the requirement that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest."

By omitting that requirement, the statute permits the government to criminalize material that, at least technically speaking, is not obscene. The Supreme Court has declined to articulate a single national standard for all obscenity cases, because the nation is too big and too diverse.

BTW, contrary to what's reported in the article I quoted, it doesn't appear to me that the statute has actually been amended. But it might be that I just haven't looked closely enough.

Under the first amendment, obscenity is only punishable if it meets three requirements; i. community standard and rationalization, ii. violates state law and subject to state action, and iii. the work "taken as a whole lacks serious literary, artistic, political, or scientific value." This is a direct application from Miller v. California (1973). Ironically, (at least to me) the work is deemed at least superficially to be an artistic work by nature of the media in which it is conveyed.

I don't think that anything is being omitted here though. If anything, it's being more narrowly defined to include a categorical caveat. However, there is specific mentioning of child pornography with emphasis on surpassing criteria. It says that photographs, videos, and movies using actual children surpass the obscenity test, requiring at least one of the three to become applicable. However, it does not cover digitized pictures, drawings, texts, which are constitutionally protected under the constitution via Ashecroft v. Free Speech Coalition (2002).

From an article in Wired Magazine:

Quote:

A U.S. comic book collector is being sentenced to six months in prison after pleading guilty to importing and possessing Japanese manga books depicting illustrations of child sex and bestiality.

Christopher Handley was sentenced in Iowa on Thursday almost a year after pleading guilty to charges of possessing "obscene visual representations of the sexual abuse of children."

The 40-year-old was charged under the 2003 Protect Act, which outlaws cartoons, drawings, sculptures or paintings depicting minors engaging in sexually explicit conduct, and which lack "serious literary, artistic, political, or scientific value." Handley was the nation's first to be convicted under that law for possessing cartoon art, without any evidence that he also collected or viewed genuine child pornography.

Without a plea deal with federal authorities, he faced a maximum 15-year sentence.

Comic fans were outraged, saying jailing someone over manga does not protect children from sexual abuse.

Quote:

"I'd say the anime community's reaction to this, since day one, has been almost exclusively one of support for Handley and disgust with the U.S. courts and legal system," Christopher MacDonald, editor of Anime News Network, said in an e-mail.
Congress passed the Protect Act after the Supreme Court struck down a broader law prohibiting any visual depictions of minors engaged in sexual activity, including computer-generated imagery and other fakes. The high court ruled that the ban was too broad, and could cover legitimate speech, including Hollywood productions.

In response, the Protect Act narrows the prohibition to cover only depictions that the defendant's community would consider "obscene."
The case began in 2006, when customs officials intercepted and opened a package from Japan addressed to Handley. Seven books of manga inside contained cartoon drawings of minors engaged in sexually explicit acts and bestiality.

Thoughts?

That seems quite irrelevant to what the article states is the law. The law prohibits certain depictions (that lack scientific, artistic, etc.), not simply protection of children from sexual abuse. If people feel the law is unjust or is not what it should be, then they should work to change the law.

So, the "anime community" supports depictions of children engaged in sexually explicit acts and bestiality?

It seems to me that the court ruled in accordance with the law, which is exactly what courts are supposed to do. If people have a problem with what the law is, then they should be angry with legislators who made it, and should work to change the law. Being angry with the judges and judicial system seems to me to be very misdirected anger. After all, do people seriously want judges to simply rule based on their personal whims, or do they want the judges to follow the law? (If you are ever charged with something, do you want the judge to be able to ignore the law and just throw you into prison or not, as it suits the whim of a judge?) As long as the law is as it is, the courts should rule just as they did in this case (unless, of course, the article left out some important detail).

If the law is unjust, the law should be changed or revoked, not simply ignored. Blaming judges for what the law is, is quite frankly stupid.

Actually, all obscene expression can be punished under the First Amendment. As a legal matter, expression isn't obscene unless it meets the Miller test.

1466A(a)(1) and (b)(1) specifically state that they reach only expression that is obscene. However, 1466A(a)(2) and (b)(2) do not contain this limitation. Rather, these provisions apply to expression that (a) "depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and (b) lacks serious literary, artistic, political, or scientific value." That is to say, neither 1466A(a)(2) nor (b)(2) requires Miller's first prong which requires that "the average person, applying contemporary community standards would find that the work in question, taken as a whole, appeals to the prurient interest."

As I'm sure you know, child pornography and obscenity are two separate categories of expression. Neither category is protected by the First Amendment. As you point out, however, child pornography can be punished only if it involves actual children. However, obscene expression can be punished regardless of whether it depicts actual children (at least until the Supreme Court says otherwise).

Your interpretation is very interesting. A few questions though. When you say that the second parts of A and B do not contain the limitations of the first parts, are you implying that they are usable interdependent? I clearly see a conjunctive inference separated by a disjunction at the end of a2. There is a necessary condition for A1 and A2 (and vice versa). The same goes for B. And thinking about it, would the Millers test necessarily apply in this case, especially considering that there exists some circumstance which would permit less than all three criteria met to meet terms?

(a) In general.--Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--

(1)(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or

(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;

I would say within the context of the first amendment, child pornography is a predicate of obscenity, not separate categories. But to clarify, that's my own opinion. That neither is protected by the first amendment, I read differently as there exist at least some extenuating circumstances in any case. I wonder if you are going on Roth v. US (1957) as the basis for your supposition without taking into account other progressions. But still, very interesting discussion.

Yes, I take it that the opponents of the law are trying to change it by expressing their disagreement with it.

The law itself is almost certainly unconstitutional (which is not to say that I disagree with the law). But I'm not sure that critics object to the law so much as they object to the way it was used by the government in this particular case -- i.e., to prosecute someone for possessing animated images. I don't think the text of the law says anything about these kinds of images, and it's not clear that congress intended for these kinds of images to be covered by the act. It was federal prosecutors who made the decision to apply the law to the images at issue in this case. Although I have some sympathy with this kind of legislation, I can understand why some people would be concerned about using it to prosecute someone for possessing comic books.