Criminalizing Comic Book Porn

6-1-2009 Iowa:

From Crime & Federalism blog:

Interesting case for those of you who follow free speech issues. (UPDATE: Read the comments.) Some dude in Iowa is going to prison for collecting comic book images of cartoon children being molested. At first I thought Ashcroft v. Free Speech Coalition would apply. The law got a head of me. Child pornography now includes:

(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;

18 U.S.C. 1466A (here). I think that provision would be unconstitutional. I wrote a brief a long time ago explaining why. I'll see if I can find it. UPDATE: Or not. It's an interesting issue. New York v. Ferber's child porn exception would not apply, since no children were actually injured due to the comic books being produced. See also, Ashcroft v. Free Speech Coalition. So the law would have to be upheld under California v. Miller's general obscenity review.

This would be a great Con Law final. What better way to see if a student can parse the legal issues?

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VA- 4th Circuit upholds law against cartoon child porn

12-22-2008 Virginia:

RICHMOND, Va. — Child pornography is illegal even if the pictures are drawn, a federal appeals panel said in affirming the nation's first conviction under a 2003 federal law against such cartoons.

Dwight Whorley of Richmond is serving 20 years in prison, convicted in 2005 of using a public computer for jobseekers at the Virginia Employment Commission to receive 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men. Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received e-mails graphically describing parents sexually molesting their children.

A three-judge panel of the 4th U.S. Circuit Court of Appeals on Dec. 18 upheld his conviction.

Among the arguments in his appeal was that cartoons are protected under the First Amendment because they do not depict real children. He also claimed the statute was unconstitutional because text-only e-mails cannot be obscene.

Two judges rejected those arguments in U.S. v. Whorley. A third agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.

Judge Paul V. Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that "it is not a required element of any offense under this section that the minor depicted actually exists."

Rob Wagner, the federal public defender who represented Whorley, said he was "very disappointed" with the ruling and that he would ask the full appeals court to reconsider. If that failed, Wagner said he would petition the U.S. Supreme Court to review the case.

A Virginia jury convicted Whorley of 74 counts including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene e-mails describing the sexual abuse of children.

Whorley, 55, is serving his sentence at the Gilmer Federal Correction Institution in Glenville, W.Va.

He previously was sentenced to 46 months in prison for a 1999 child-pornography conviction. ..News Source.. by AP

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IA- Iowa Collector Charged for Allegedly Obscene Manga

The world is out of control, make sure you do not collect certain comic books (MANGA) as they may contain child porn(?) images according to the NEW laws.

12-12-2008 Iowa:

The Comic Book Legal Defense Fund (CBLDF) has announced on Thursday that it is serving as a special consultant to the defense of Christopher Handley, an Iowa collector charged with the alleged possession of obscene manga. Handley faces up to 20 years in prison. Handley had received a package of seven manga that the Postal Inspector intercepted and determined to contain objectionable images.

With a search warrant, the agents from the Postal Inspector's office, Immigration and Customs Enforcement Agency, Special Agents from the Iowa Division of Criminal Investigation, and officers from the Glenwood Police Department followed Handley home from the post office and seized his collection of over 1,200 manga volumes; hundreds of DVDs, VHS tapes, and laser discs; seven computers; and other materials. However, Handley is being charged for only part of his collection.

CBLDF's United Defense Group team, led by Eric Chase, has successfully petitioned District Judge Gritzner to drop some of Handley's charges and rule parts of a controversial law unconstitutional. Handley was initially charged under the United States Code, which was amended by section 504 of the PROTECT Act to prohibit distribution or possession of "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;

Gritzner ruled that the last two clauses were unconstitutional as they restricted protected speech. Handley still faces charges under the obscenity clause, if the court determines that the material meets the Supreme Court's Miller Test. The Miller Test dictates that material is only obscene if a jury determines that it meets all of the following three criteria:

-whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest

-whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

-whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

CBLDF Executive Director Charles Brownstein notes, "In the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the Federal Government attempting to strip a citizen of his freedom because he owned comic books."

Update: In July, the United States District Court for the Southern District of Iowa posted the ruling that struck down some of charges against Handley. Handley was originally charged on May 8, 2007. Thanks, hikaru004.

Update 2: According to CBLDF Executive Director Charles Brownstein, the start of this case has now been pushed back to February 2, 2009. Thank you Carl Horn for this information. Eric Chase, the lead defense lawyer on the case, provided a few more details about the manga in question in November, while award-winning comic book writer and Princess Mononoke adapter Neil Gaiman voiced his support for the defense. ..News Source..

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