I didn't spend all of those years studying First Amendment law, or all of those years doing volunteer civil liberties work, without learning a thing or two. Which is why David Kravets' "U.S. Manga Obscenity Conviction Roils Comics World" (Wired "Threat Level" column, 5/28/09) came as exactly no shock to me. I'll bet quite a few of you can't say the same.
For those of you who don't want to (or can't) click through to the original article, let me summarize: in 2006, a (now) 39 year old Iowa manga collector named Christopher Handley ordered half a dozen volumes of "lolicon" manga from a retailer in Japan. They were intercepted by a US Customs Service inspector, and Handley was charged with importation and possession of child pornography, specifically "possession of any type of visual depiction, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct that is obscene." Yesterday, on advice of his attorney, he plead guilty to all charges. He faces a prison term of up to 15 years, a fine of up to $250,000, plus 3 years probation, and he will spend the rest of his life listed on the convicted sex offender registry.
No, we don't know what books he ordered, but according to the US Department of Justice press release ("Iowa Man Pleads Guilty to Possessing Obscene Visual Representations of the Sexual Abuse of Children", 5/20/09), "in May 2006, U.S. Immigration and Customs Enforcement (ICE) intercepted a mail package coming into the United States from Japan that was addressed to Handley. Inside the package was obscene material, including books containing visual representations of the sexual abuse of children, specifically Japanese manga drawings of minor females being sexually abused by adult males and animals. Pursuant to a search warrant, the U.S. Postal Inspection Service (USPIS) searched and seized additional obscene drawings of the sexual abuse of children at Handley’s residence in Glenwood."
I will also tell you that either Handley's lawyer Eric Chase is either grand-standing, or else he's flatly incompetent to practice First Amendment law, if it's true that he told Wired, "It’s probably the only law I’m aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can’t tell them." Lawyers who specialize in obscenity cases, both pro-civil-liberties and anti-pornography, track jury verdicts and can tell you with nearly 100% reliability whether what they're looking at would be ruled obscene by a jury, and yes, I'm telling you right now, no jury has ever not indicted and convicted for visual portrayals of children having sex. The same is equally true of equally graphic portrayals of bestiality, necrophilia, urolalia, scat play, rape, or simultaneous sex and torture. To anybody who actually knows what they're talking about, this isn't even controversial, and if Eric Chase didn't know that, and didn't research the case law enough to know that, Handley had an idiot for an attorney. Or, alternatively, he does know it, but is counting on you not to know it.
If Handley had a case, that case would have depended on an "artistic merit" defense; under US obscenity law, no image is obscene if it has "serious literary, artistic, political or scientific value." (1973 Miller v California.) The Comic Book Legal Defense Fund says that they consulted on the case and lined up expert witnesses to testify to the artistic merits of "lolicon" manga. Apparently Chase, and Handley, concluded that the jury wasn't going to buy it. They may well be right; at least one past jury in a high-profile, well funded, well defended case made it clear that if the subject matter is offensive enough, they don't care how famous the artist is or what the critics say about the importance of the work, it's still obscene.
Told you so. Lots of you didn't believe me, but I did tell you.
P.S. Note the date of the interception of Handley's manga. The US Customs Service, and presumably thereby the US Postal Service, have known what retailers in Japan sell this stuff to American buyers for at least three years. Can your library survive a search warrant? If not, you've got work to do. Hope you own a cross-cut paper shredder and an indoor fireplace. Otherwise, you're betting the rest of your life that they won't pick you to be the next person they make an example out of.
You might keep being lucky. There are a lot of lolicon manga collectors in the US. Only one of them has been convicted, so far. Is it worth it to you to keep betting those odds? If so, be my guest. But if you are going to do so, may I politely suggest, not as a lawyer but as someone who studies the history of these things? Shut the hell up about it. Tell no one, especially not through an online email service or web forum or blog, no matter how good you think your anonymity is (because it isn't), that you are doing so. Because that's just asking for it. When prosecutors are looking to hand out search warrants, people who brag about their crimes in public are the first ones they target.
Unless, of course, you have a martyr complex and want to be a registered sex offender for the rest of your life, because taking a stand As a Matter of Principle is that important to you. If it is? Again, be my guest. If you're that determined to be a martyr, though, don't expect me to stand up for you.
P.P.S. Every time I write about anything like this, people think I'm standing up for the law or defending the prosecutors. I'm not. If it were up to me, you could collect drawings (or even pictures or movies) of anything you want. I don't write this stuff because I'm anti-porn, or anti- any "Forbidden Lore." I write this stuff because ignorance of the laws you live under appalls and offends me. I write this stuff because I'm tired of self-entitled idiots who've never participated in democracy in any way stubbornly and naively insisting that the law is whatever they want it to be, that juries have to agree with them about what should and shouldn't be legal.
If you want to enjoy an illegal hobby, it behooves you to know the law and your chances of acquittal if you're caught. If you want your illegal hobby to be legal, you've got work to do. Saying stupid crap like, "yaoi and hentai and lolicon manga are entirely legal because they're just lines on paper" doesn't make it true, it just makes you someone who doesn't know what he's talking about. If you want all lines on paper to be legal, your nearest ACLU would love you to donate and volunteer. You're not going to achieve that goal by whining about it in your LiveJournal, nor on mine. I'm just saying.
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- J. Brad Hicks (
bradhicks) wrote,