ICV2 is reporting the following:
A three judge panel of the 4th Circuit Court of Appeals upheld the conviction of Dwight Whorley on child pornography charges last week, and ruled that there is no necessity that an actual child be involved for a conviction, according to the Associated Press. Whorley had argued in his appeal that the 20 anime he’d received on his work computer, which reportedly depicted young girls being forced to have sex with men, were protected speech; two of the three judges on the panel rejected that argument.
This ruling could possibly affect the case of Christopher Handley, a 38-year-old Iowa man who stands accused of purchasing and transporting across state lines manga depicting underage sexual acts. The Comic Book Legal Defense Fund is working with the defense in Handley’s case. The PROTECT Act is at the core of both cases.
Read the original CBLDF press release about the Handley case HERE.
ICV2 also said:
Whorley is currently serving 20 years in prison; he was convicted of 74 counts of child pornography and obscenity charges, including receiving photos of real children having sex.
Christopher Handley, who did not possess any photos of real children, is currently facing charges under the PROTECT Act for possession of manga (see “Yaoi Titles in Manga Child Porn Case”). That case goes to trial in early January. The Comic Book Legal Defense Fund is assisting in the defense.
As I’ve said before, I don’t see why having fictional depictions of one crime is illegal and having fictional representations of hundreds of other crimes is a-okay. According to the release, Whorley possessed actual child porn, and if that’s true, I say throw the book at him (on that count, anyway). Handley did not own a single incident of actual child porn. It’s a huge and important distinction.
Jeff Trexler will have legal analysis later today.
December 22nd, 2008 at 10:55 am
Gee…this means anyone who distributes Stephen King’s It or Battle Royale is trafficking in child porn.
December 22nd, 2008 at 11:03 am
I hate to go against the free speechers on this one, but manga that has little girls in it (or boys for that matter) performing sex acts should be banned. There is no value in it beyond the perverted base needs of pedophiles. This is not literature.
December 22nd, 2008 at 11:21 am
oh–I also forgot King’s Wizard and Glass, and George A. Martin’s A Game of Thrones would also be considered porn under these judges’ interpretation. I’m sure there are more literary elite that also fit this interpretation.
I fully expect to see Wal-Mart, Borders, Barnes and Noble and a whole host of book publishers be brought in if this precedent is upheld.
December 22nd, 2008 at 11:36 am
For something to actually be considered obscene under the law and not protected as free speech by the First Amendment, all three parts of the Miller Test have to be met. The first part (and probably the most important) asks if the average person would find that the work taken as a whole, appeals to the “prurient” interest in someone. In other words, it asks if the entire work meant to cause sexual arousal in someone.
This would immediately rule out works such as It, Battle Royal, or thousands of other works.
December 22nd, 2008 at 11:47 am
I take it, Patrick, that you should be sent to prison for owning a copy of The Judas Contract?
December 22nd, 2008 at 12:17 pm
My comment seems to be getting defined as spam on this article. Not sure why – possibly due to its length, or perhaps the watchdog controls are turned up quite high do to the controversial nature of the topic. I’ve posted my complete comment in the Talk@ boards.
December 22nd, 2008 at 12:18 pm
@Patrick:
Please do not state opinion as fact. I don’t like the images myself, find them rather disgusting actually. But it *is* literature (in that it is a written work) and whether you or I or anyone like it is irrelevant. Not to beat a dead horse in this debate but honestly: it’s not real. Child pornography laws, with all do respect to these judges, DO necessitate an actual child. The spirit of the law is to protect children. If a child is placed in sexual situations, said child could be traumatized, hurt, etc.
But who does this decision protect? And where is the line drawn? Bestiality charges if you own an issue of Mighty Avengers where Hank Pym and Tigra have sex? Conspiracy to assassinate the president — because you own Black Summer in TPB? Who’s to say where the so-called “value” lies?
December 22nd, 2008 at 12:54 pm
It should be noted that the Handley case is in Iowa, which is not in the 4th Circuit. As such, the ruling doesn’t have the same sort of binding effect on the interpretation of the law as it would have if the Handley case were inside that circuit (at least to my non-lawyerly understanding.)
December 22nd, 2008 at 1:13 pm
BentConrer says:
For something to actually be considered obscene under the law and not protected as free speech by the First Amendment, all three parts of the Miller Test have to be met. The first part (and probably the most important) asks if the average person would find that the work taken as a whole, appeals to the “prurient” interest in someone. In other words, it asks if the entire work meant to cause sexual arousal in someone.
This would immediately rule out works such as It, Battle Royal, or thousands of other works.
*************
Oh, I agree with you–but for some manga (or comics), you’d need the entirity of the story to put a few parts into context. It’s true we do not know if the two dissenting judges applied such standards, but the fact that 2 of 3 did is somewhat telling in what’s going on. hopefully, more information will be made available.
December 22nd, 2008 at 1:18 pm
The same people who defend this material would object to other material as “hate speech”. There has to be a line, and I for one am fine with it being drawn where it has been in this case. The material in question is sick.
December 22nd, 2008 at 1:35 pm
Next Target: Top Shelf and Alan Moore.
And quite frankly – pedophiles exists. Sad, but true. And I’d rather have them fullfilling their fantasies via fictional drawn stories that won’t harm an actual child as opposed to have them go after an actual child.
December 22nd, 2008 at 2:00 pm
Bentcorner pretty much summed it up as to why certain things are or are not obscene. I posted that in the previous blog post about this case, but then, like, Vinnie, I was blocked from further posting on the article due to being seen as spam.
December 22nd, 2008 at 3:14 pm
@Paul
In as much as porn is literature, then ok, kiddie porn manga is literature. However, it is reprehensible in as much as it’s kiddie porn. I’d leave it up to the experts to say whether the replacement sates the pedophiles apatite for the real thing or makes it worse, but in my view it is not unreasonable for some of these images to be treated as illegal. Hopefully, the CBLDF will help to find a line that protects both a civil society and creative free speech.
December 22nd, 2008 at 5:47 pm
Nat, your understanding sounds valid. Thus the “possible” qualifier and my note that Jeff Trexler will be along later with actual legalese.
I have issue with the “prurient interest” clause: There are lots and lots and lots of reasons to buy something besides its literary value. I bought Gilbert Hernandez’s BIRDLAND because I own nearly everything Hernandez has done, and I wanted to see it to see what he did with it.
Milo Manara fans are frequently buying simply for the art, though in many people’s eyes, the quality can be described as transcending “prurient,” I’m sure that some “communities” would not allow the beauty of Manara’s artwork to influence their opinion of its “literary” value.
December 22nd, 2008 at 8:05 pm
“Hopefully, the CBLDF will help to find a line that protects both a civil society and creative free speech.”
They do that whenever they protect the freedom to create or read comics. Throwing people in prison for having drawings not intending to harm is not the action of a civil society.
December 23rd, 2008 at 4:09 am
“Throwing people in prison for having drawings not intending to harm is not the action of a civil society.”
Are we claiming America is a civil society? I have to say that in recent years there’s little evidence to support that claim.
Do people even stop to comprehend the ramifications of their past, present, and potential future actions anymore? Civil society, right… Some people think that just because the country checked the “Democracy” box on it’s application that we actually live in one.
Seems to me that people spend too much time staring into a computer monitor when they should be taking a cold hard look into a mirror.
(by the way “Nat Gertler”, this comment isn’t directed at you. I just wanted to use what you said as a springboard, so please don’t think I’m yelling at you or anything. Thanks.)
December 23rd, 2008 at 3:33 pm
“Throwing people in prison for having drawings not intending to harm is not the action of a civil society.”
It’s already established that there are certain types of speech that are not necessarily protected. Treasonous speech is one, obscenity is another, hate speech is rapidly becoming a third.
No one is going to jail for “having drawings”. They are (potentially) going to jail for having drawings dealing with a topic that is considered obscene and illegal. Oversimplifying the parameters of the argument weakens the argument; if you widen the target, you give me more to attack. Stay on target.
Is it child porn, yes or no? We can debate that. If it ISN’T child porn, is is still porn (and as such subject to a different set of laws and punishments)? We can debate that. Should anything be consdiered porn? We can’t have that argument here, because we’re still trying to decide the first question.
I should note that Mr. Gertler has one of the largest collections I know of of comic strips and books dealing with young children engaged in adult activity far past their normal abilities.
I should also note that the books in question are Peanuts comics, and the activities in question are discussing philosophy, quoting works of classic literature and administering psychotherapy.
Intent and content is INCREDIBLY important when discussing this topic.
December 23rd, 2008 at 6:43 pm
No, Vinnie, stating that the plan is to put him in jail for drawings that are illegal does not actually add precision to the argument, because there was not claim that this was being done outside of a legal framework. The fact that there is a law on the books about it may arguably make it a legal thing to do, but there are many laws in many places that are enforced that are uncivil, for some uses of the term.
December 23rd, 2008 at 11:24 pm
You’ve got my meaning backwards – I wasn’t saying that you were making your argument more precise, I was saying that you were trying to make the act sound worse by making it sound more broad and potentially universal. adn by doing so, you open yourself up for an attack on the fact that you being misleading, and thus not even having to attack your original point. The suggestion bsine, If I can shows flaws in your argument, however small, it implies that the entire argument is false. And people only need implications nowadays.
If you say to someone “This guy is going to jail for having pictures that didn’t harm anybody”, their reaction will likely be “That doesn’t sound right”. But it’s not a fair/complete explanation of the situation. “This guy might go to jail for having pictures that some are claiming are pornographic, and possibly child porn” is going to get a WILDLY different reaction, for right or wrong. All I’d have to do is show you were trying to cloud the issue with a lack of details and/or facts, and I come off sounding like the winner.
Bear in mind, we’re pretty much (I believe) on the same side here – if they’re not obscene, he shouldn’t go to jail. If it’s not child porn, he shouldn’t be prosecuted as if they are. But if they were, all bets are off. I’m simply calling attention to debating techniques I consider ill-serving, if only because they’re easy to deflect.
(cont’d due to spam/size limitations)
December 23rd, 2008 at 11:27 pm
(Cont’d because my comments are so large…)
Right now, this sounds like one of those cases where they were expecting to get this guy easily, find endless stacks of pics of kids, and make themselves look good. But he had nothing actionable, and rather than come off looking foolish, they chose to go after him with the few panels they could cobble together, and hope that no one asked too many questions. It’s remarkably similar to the way they went after Paul “Pee Wee” Rubens. He’d bought this MASSIVE collection of vintage gay porn. They came in, siezed everything, and went through it all, looking for kiddie porn. They found exactly ONE picture that even came close – a decades old shot of a young boy (clothed) holding a palm frond or something in a shot with two oiled nude men in bodybuilder poses. They declared that enough to run with, and brought him up on charges. Rubens settled for paying a fine on a lesser charge, and the gov’t got to call it a “win”. This sounds like they might be trying the same play.