Comic book depictions of children engaged in sexually explicit conduct have once again become a major legal issue.

Just a few years ago, the Supreme Court struck down a federal law that “extended the prohibition against child pornography to images that . . . were produced without using any real children.” However, last week, in U.S. v. Whorley, a federal appeals court upheld a 20-year prison term for a man convicted of receiving “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.” This follows a lower court case–U.S. v. Handley–in which a judge ruled against a manga collector who argued that indicting him for possession of child porn is unconstitutional. An additional sign of the importance of this issue is that it is not limited to the United States–an Australian court upheld a man’s conviction for possessing sexually explicit Simpsons cartoons.

The flurry of cases has sparked a considerable amount of discussion both online and off. Back in October, the Comic Book Legal Defense Fund announced that it had become a special consultant to the defense of Christopher Handley, the manga collector facing trial for receiving and possessing manga alleged to be child pornography. Neil Gaiman garnered considerable attention for his eloquent post supporting the CBLDF’s decision; citing the First Amendment and the problematic nature of the law as “big blunt instrument,” Gaiman argued the defending the freedom to express what you find reprehensible is a necessary part of defending speech that you like. Others, most notably comics writer Valerie d’Orazio, raised serious questions about whether they could support the CBLDF when it is “fighting for the right of a publisher to print images of little children having sex.”

Is it constitutional to send someone to jail for possessing comics with sexually explicit images of kids? And how should the comics community respond? My thoughts below, after the jump.

The following is a brief overview–brief for a legal analysis, anyway–of core issues raised by the Handley and Whorley rulings. Of course, I’ve left out a lot of detailed and simplified some things in the interest of focusing attention on the key principles. If you want more detail, check out the original court opinions.

Summary. In a nutshell, an attempt to use the courts to strike down current law faces a difficult challenge. One hurdle: the part of the statute that prohibits illustrated depictions that are obscene. Obscene expression was unprotected speech before the current statute, which can be seen as reiterating what was already illegal.

Here’s an analogy: imagine that a law was passed to make stealing comics illegal, and the law tied the penalties to stealing comics to the penalties for theft. The law would be a new law specially targeted to comics, but at base it wouldn’t change much, if anything–stealing comics was already illegal given the prohibition against theft.

Why would Congress pass such a statute? There could be several reasons. One we shouldn’t discount is the desire to make a political statement by declaring an opposition to, in this case, child porn. The present statute also provides an additional alternative test–described below–that courts may or may not accept; by providing obscenity as the baseline, the statute gives a clear basis for child porn prosecutions susceptible to challenge given the Supreme Court’s previous decision to strike down an earlier overbroad prohibition of all sexually explicit illustrations regardless of whether they were obscene.

I should also note in this context that U.S. law does not apply to the Simpsons case in Australia, which has its own legal framework with regard to permitted speech. However, the fact that an Australian court has reached similar conclusions suggests a noteworthy global trend.

Current law. After the Supreme Court struck down an earlier statute prohibiting sexually explicit child pornography produced without using real children, Congress passed the PROTECT Act, a new law with provisions designed to survive a legal challenge.

The problem with the earlier law, the Court had held, was that it was not merely extend to the distribution of obscene material; rather, it reached beyond obscene material to prohibit constitutionally protected speech. The PROTECT Act–whose most relevant provisions are codified here–attempts to remedy that flaw by providing alternative grounds for convicting someone for receiving or possessing visual depictions of minors–or images that appear to minors–engaged in sexually explicit conduct.

The constitutionality of prohibiting the distribution or possession of obscene material is itself an important issue, but because it goes significantly beyond the issue of prohibiting depictions in comics I’ll simply leave those issues to the analysis in the court rulings. For our purposes, I want to focus on the alternative tests used to describe what images are prohibited.

We divide the key alternatives into two tests, which for purposes of this post we’ll call Test 1 (18 USC s.1466A(a)(1), (b)(1)) and Test 2 (18 USC s.1466A(a)(2), (b)(2)).

Test 1 basically reiterates existing law by expressly incorporates the obscenity standard, prohibiting material that

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

Test 2 does not make an express reference to the word “obscene,” but rather, draws from obscenity jurisprudence to distill a more precise (and NSFW!) standard for inappropriate material appealing to a prurient interest–namely, material 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.

Challenging the law. Before we go further into specifics, it may be helpful to review the basic structure of the federal court system in the U.S.

• Not just anyone can go to court to challenge the law. There must be based on an actual case or controversy–such as in the above cases, being indicted for violating the law.
• Trials are held in federal district court. Before the final verdict both parties can–and often do–challenge each others’ actions, and the judge issues rulings determining the validity of each claim. In the Handley case, for example, the defendant challenged the constitutionality of the indictment that charged him with receiving and possessing child pornography. The judge’s rulings–including the final verdict–can be appealed.
• The first level of an appeal is the United States Court of Appeals. The Court of Appeals is divided into what are known as “circuits,” a structure that is perhaps more clearly by this map. Iowa, where the Handley case is being tried, is in the Eighth Circuit. The Whorley trial took place in Virginia, which is why the appeal was heard in the Fourth Circuit. Appeals are typically held by a panel of three judges, and the precedents of one circuit are not binding in the other circuits.
• If a party disagrees with the ruling of the relevant circuit court, the next step is to appeal to the U.S. Supreme Court. The Supreme Court does not have to take the case–in fact, the Court typically takes only a small percentage of requests each year–and Supreme Court precedent is binding on all lower courts.

Is current federal law unconstitutional? As noted in the overview, an attempt to get the PROTECT Act provisions completely struck down in court faces a difficult obstacle. By providing that a person can be guilty for violating Test 1 or Test 2, the authors of the PROTECT Act increased the likelihood that the statute would survive judicial scrutiny. For the law to be invalid, a court would have to strike down both tests, a result seen as unlikely given the fact that Test 1 expressly refers to obscene–i.e., unprotected–depictions. As the Supreme Court noted in a recent case assessing the PROTECT Act’s prohibition of pandering, “obscene material depicting (actual or virtual) children engaged in sexually explicit conduct” is “constitutionally proscribable.”

The Handley decision illustrates the difficulty of challenging both tests. In a partial victory for the defense, the court found that Test 2 is unconstitutional, since it does not expressly “require the visual depictions be obscene” and thus can “restrict protected speech.” Whether this ruling will stand on appeal is open to debate; for example, the Supreme Court’s recent ruling in U.S. v. Williams contains language that indicates this definition may indeed be constitutionally sound. Nonetheless, Test 1 does require the visual depictions to be obscene, which is why the court determined Test 1–and the indictment–to be constitutional.

The circuit court’s ruling in the Whorley case focuses on Test 1 and reaches the same basic conclusion as the district court in Handley. The Whorley court’s reasoning on the constitutionality of prohibiting images not based on real children is a model of judicial efficiency. The opinion notes that Whorley’s lawyers rely on the Supreme Court case invalidating the earlier statute, then adds that the current statute “prohibits visual depictions of minors only when they are obscene.” Inasmuch as the Supreme Court stated that “obscenity in any form is not protected by the First Amendment,” the challenge to the constitutionality of current law is “without merit.”

As some bloggers have noted, one judge on the appellate panel did write a partial dissent. However, the dissent does not provide particularly strong grounds for striking down the relevant provisions of the PROTECT Act on appeal. Arguably the strongest part of the dissent concerns a separate issue from visual depictions–namely, the constitutionality of convicting Whorley for sending or receiving obscene emails.

While the judge makes a stirring defense of free speech, we shouldn’t lose sight of the broader legal reality–that the consensus interpretation of the First Amendment is that prohibiting obscene expression, whether fiction or nonfiction, text or image, is constitutional. For that to be changed is going to require either a substantially new set of Supreme Court justices or amendments to existing statutes.

The dissent does include a section on images, but as I noted above, its reasoning is not all that helpful. The judge agrees with the majority that the prohibition is not unconstitutional–or, in the dissent’s legalese, “not unconstitutionally infirm.” Where the dissent disagrees is in the determination that the PROTECT Act applies in this particular case. The crux of the dissent’s argument is that the statute literally applies only to images that depict real people–for this judge, the words “persons of the same or opposite sex” and “appears to be . . . a minor” in the PROTECT Act necessarily imply the existence of an actual child.

The majority summarily dismisses this interpretation, citing the PROTECT Act’s express statement that “[i]t is not a required element of any offense under this section that the minor depicted actually exist.” Given the statutory language and its legislative history, there is a significant possibility that most other courts would reach the same conclusion.

Although the Whorley appellate ruling is not binding on either the Handley court or the Eighth Circuit when it hears the (already filed) Handley appeals, the resonance between the existing rulings does point to a potential obstacle for efforts to get the Supreme Court to strike down current law. One factor that tends to prompt the Supreme Court to hear a case is the existence of a circuit split–that is, when different circuits reach different conclusions.

If the Eighth Circuit follows the same reasoning we’ve already seen regarding Test 1, there’s a significant possibility that the Supreme Court will view the issue as resolved–the Court struck down a previous statute because it did not extend only to obscene material; circuit courts agree that current law rectifies the problem; case closed. Harmony among the circuits would not guarantee such an outcome, but a savvy legal strategist will already be taking this into account when considering what to do next.

What next? As I indicated in a comment to an earlier post, the question of how to respond to recent developments in obscenity law can be seen as a paradigmatic example of a tragic choice, a term used in law and economics to refer to the emergence of value conflicts from the allocation of scarce resources.

Such conflicts are practically unavoidable for most nonprofit organizations. When there is only one heart available for a transplant, who lives and who dies? If there is only enough money to help one needy family, whom do you help and who continues to suffer without hope? These are not easy questions, but many people face them every day.

With regard to the situation at hand, we can view the tragic choice scenario from at least two perspectives. One is that of the comics community–the individuals and nonprofits faced with the decision of whether to spend time and money in helping Handley, Whorley and others challenge current law. While some may view free speech as an ideal worth defending at all costs, others may question whether their money or time is worth spending in defense of child porn when there are arguably more worthwhile (and less troubling) causes in need of immediate support. Moreover, to put it in admittedly stark financial terms, there’s a real question as to whether the likelihood of defeating Test 1 justifies a substantial outlay of funds for a challenge–though that may sound a bit harsh, it’s a consideration with which legal advocacy organizations struggle all the time.

Another perspective is that of society itself. Neil Gaiman aptly observed that the law is a blunt instrument, but there’s often a reason for that. The majority may concluded that it simply cannot afford, let alone figure out how to structure, a legal system that can preventing certain harmful acts with laser-like precision.

Does this mean that some people end up in jail or owing money on the basis of arguably over-general laws? No question–hence the term “tragic choice.” In the present instance, a number of individuals across ideological and party lines have raised the concern that graphic fictional depictions of minors involved in sexually explicit activities might create an environment conducive toward the sexual exploitation of actual kids. For some advocates of the current law–or some who are reluctant to oppose it–the potential harm to real children trumps the potential harm to our civic ideals resulting from the imprisonment of people who seek out child porn.

In addition, when assessing the responses to recent developments it’s also worth considering differing perspectives as to the most effective strategy. In this regard Valerie d’Orazio has made a subtle and important point: for some people looking to ban all kinds of porn, the campaign targeting comics and kids is a tactic, not a goal–these critics seek to discredit the anti-censorship movement by linking it to the defense of child molestation. It’s classic political rope-a-dope: get your opponents to exhaust their reputational and financial capital defending the indefensible, then move in for the kill.

As with everything I’ve said in this post, my aim here is not to take a particular side, but to highlight key issues in the debate. The choices are difficult; the problems, complex. For some of you, the risk to free speech outweighs competing concerns; for others, equally valid considerations may lead to a different response. But if there’s one thing on which both sides can agree, I hope it’s the value of mutual respect.

This entry was posted on Tuesday, December 23rd, 2008 at 12:42 pm and is filed under Legal, News & Views. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.