Yesterday Newsarama reported the CBLDF’s announcement that “Christopher Handley, the Iowa manga collector, has pleaded guilty ‘to possessing obscene visual representations of the sexual abuse of children and mailing obscene material.’” This development has understandably raised questions as to significance of the Handley case as legal precedent. In addition, it has also given rise to speculation as to whether the anti-censorship cause would have been better served if the CBLDF–as opposed to Handley’s local lawyers–had been in control of the case.

Below the jump: my thoughts.

The law. If you are not familiar with the legal issues in the Handley case, I strongly recommend reading the detailed analysis that I posted here a few months ago. In a nutshell, the law in this case prohibits obscene depictions of children engaged in sexually explicit conduct, regardless of whether the children are real. This means that a person could be convicted for possessing comic art deemed to be in violation of the relevant statute, which is why the CBLDF and others in the comics community have been so concerned about the outcome of this case.

Handley as precedent. Contrary to what many fear, Handley is not what courts would typically consider to be controlling precedent. A plea bargain normally is not binding on other cases. Moreover, though the judge in Handley did issue a previous ruling on the constitutionality of the law at issue, opinions issued by a federal district court have at best weak precedential value.

The more determinative rulings in federal obscenity law are those made the U.S. Courts of Appeals and, of course, the U.S. Supreme Court. Assuming there’s not a problem at sentencing, Handley’s guilty plea will prevent his case from going any further.

However, the relatively weak precedential value of the Handley case does not give the law’s critics strong reason to hope that a higher court will find the statute in question unconstitutional. As noted in my earlier analysis, the Fourth Circuit Court of Appeals, in the Whorley case, has already determined that the law is constitutional. Similarly, in U.S. v. Schales the Ninth Circuit–arguably the most liberal circuit and the appeals court most likely to strike down a law infringing on free speech–has also ruled that the law is constitutional, expressly dismissing fears that it would criminalize protected speech.

Equally important to note is that the defendant in Schales appealed the Ninth Circuit’s ruling to the U.S. Supreme Court and that the Court declined to take the case. Given the agreement between circuits and the straightforward argument that the law merely prohibits obscene speech that is already illegal, the likelihood that the Supreme Court will take a future case challenging the law at issue in Handley is relatively small.

Local counsel versus the CBLDF. The decision of local counsel to work for a plea bargain was not irrational. In fact, it reflects a sober assessment of the law and the underlying facts. The chance of success on the constitutional claim was slim, perhaps non-existent. Moreover, the manga images in question did not appear to be the sort of thing that an Iowa jury would find to have socially redeeming value. No matter how many manga experts or First Amendment scholars you bring into court, your average midwestern juror is not going to declare “graphic bestiality, including sexual intercourse, between human beings and animals such as pigs, monkeys, and others” to be a reflection of community standards.

In this regard we can analogize Handley to the Castillo conviction in Dallas, Texas just a few years ago. While that case involved a slightly different set of facts–an allegedly obscene comic sold at a shop close to a school–the key point to note is that the prosecution was able to overcome the CBLDF’s experts by appealing to the stereotype of comics as a wholesome material suitable for children.

Sure, that’s a naive view of the comics medium, but it’s equally naive to assume that we can easily counter the visceral power of such arguments with reasoned testimony from our most revered experts. To your average juror–especially jurors who don’t live in large urban areas on the coasts–these people are part of the problem. Big city professors and industry professionals are seen as liberal outsiders who despise traditional values and corrupt innocent children–to agree that a picture of a kid having sex with animals makes some sort of rational statement about reality would be to betray everything the local community holds dear.

That’s not to say the CBLDF cannot succeed in this environment. However, the first step toward developing an effective counter-strategy is to formulate a brutally honest assessment of your situation. This will never happen so long as you insist that every battle is winnable or worth fighting.

This entry was posted on Friday, May 22nd, 2009 at 1:22 am and is filed under 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.