15 Comments

1. Robert  •  May 28, 2009 @11:26 am
   

   At the risk of sounding like a disturbed deviant, I don't think a court should determine whether a comic book character is a minor or not b/c the depicted characters aren't real.

   *puts on his flame retardant suit*

2. k  •  May 28, 2009 @11:46 am
   

   I find it odd that Mr Handley had manga shipped from overseas – there are plenty of lolicon (Japanese shorthand for "Lolita complex") and other misogynistic manga available at newsstands, bookstores, and convenience stores across Japan. He's probably out of luck since he's a gaijin (foreigner). The Japanese system pretty much presumes guilt – the police can hold someone up to 21 days without pressing charges, and often coerce written confessions during that time. Jury trials have been implemented only recently on a limited basis – most trials are conducted by a 3-judge panel. Sho ga nai (it can't be helped).

3. Shkspr  •  May 28, 2009 @12:06 pm
   

   While the Japanese system may presume guilt, one hopes the Iowa system does not. Has the Protect Law been tested the way the earlier law was? Is there reason to believe it passes muster in a way the earlier law did not?

4. Joshua  •  May 28, 2009 @12:18 pm
   

   Why did he take the plea, Ken? Why not lose at trial and appeal on Constitutional grounds?

   He's going to be a registered sex offender now, right? That's a pretty unfathomable injustice.

5. Mike  •  May 28, 2009 @12:27 pm
   

   What? Ashcroft v. Free Speech Coalition, right?

6. Jag  •  May 28, 2009 @12:28 pm
   

   I honestly wasn't aware of the Protect Law, but it sounds like some really scary shit. I'm all for outlawing child pornography because it protects the actual children who are being filmed/harmed. These are just pictures.

   It sounds like Mr. Handley's lawyer was fairly shocked at the images and didn't want to risk putting it in front of a Jury. Hopefully this law will be challenged. It can't stand.

7. Mike  •  May 28, 2009 @12:29 pm
   

   Oh, somewhat relatedly. Here was the Eight Circuit's take on morphed ch1ld pr0n

   http://federalism.typepad.com/crime_federalism/2005/03/virtual_porn_mo.html

8. Ken  •  May 28, 2009 @12:31 pm
   

   Part of what is going on here is that you have two legislation and prosecution theories: one seeking to take advantage of the child porn exception to the First Amendment (which is sort of sui generis) and one taking advantage of the obscenity exception, which is much broader but can be directed at obscene stuff that happens to involve children. Or cartoon animals, possibly.

9. Mike  •  May 28, 2009 @12:38 pm
   

   Yeah. I just gave myself a refresher course. It's actually a very interesting legal issue.

   The child pron exception shouldn't apply, because no children were actually injured in the production of the porn, ala Faber.

   So it'd have to be held up under a general obscenity theory.

   That is, of course, if the courts dealt honestly with the issues in light of the framework they laid out.

10. Gregory Conen  •  May 28, 2009 @12:41 pm
    

    The PROTECT act isn't entirely untested (see US v. Whorley, where it was upheld on the Circuit Court level).

    Note also that portions of the law were held to be unconstitutional by the court, leaving this as essentially an obscenity charge. There are a few differences in detail, but the charges that stand basically rest on the well-established "Miller standard". I'm not a big fan of either this case, or obscenity laws in general, but here the law of the land appears to allow criminal charges.

    Also, the law refers to image that "appear to" depict minors, so the "fictional character doesn't have an age" issue mentioned by Robert (and, for that matter, the defendant in his motion to dismiss) can be dealt with.

11. Mike  •  May 28, 2009 @12:45 pm
    

    Robert, no flame suit would be needed. I's a legit point in these types of cases. It fails, though, because the statute deals with it.

    FYI:
    http://www.law.cornell.edu/uscode/18/1466A.html

    "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;

12. Ken  •  May 28, 2009 @12:48 pm
    

    So whether the cartoon character is a minor is still relevant, because though it uses an obscenity theory, the statute only addresses a small set of obscenity featuring what appears to be a minor.

    As a digression, I practiced in front of a federal judge — now retired — who while the U.S. Attorney years ago wanted to prosecute Coppertone for child porn for that famous ad with the dog pulling the little girl's bathing suit.

13. Mike  •  May 28, 2009 @12:55 pm
    

    If the judge bought that, I could just use as my fallback: "Even if Ferber doesn't apply, California v. Miller does. Under California v. Miller, obscene images can be banned if they lack serious literary or artistic values under the standards present in the community in which those images were possessed. Here, these are little children getting raped by tentacles. In Iowa, the relevant community, those images would not have serious artistic value.

    "That the image may appear to involve children only means we only have an additional element in our case to prove. The law made it harder for us to prosecuted these types of cases, since it's not enough that the comic books lack artistic value. The images must also involve children. So, if anything, the PROTECT Act gave free sppeech more breathing room than the First Amendment actually requires.

    I would feel pretty confident with that argument…. Except…. On the particulars, I am ignorant….. Can a cartoon or comic be obscene? Never looked into the issue.

14. Mark  •  May 28, 2009 @1:55 pm
    

    I think the main post is barking up the wrong tree and the commenters are more on track here. What's wrong with a court determining if a drawing depicts a minor? It's not a very hard determination to make, and courts make far slippier factual determinations all the time.

    The real problem here is that it's hard to identify any harm. It's almost a preventative theory – if they're looking at simulated stuff, they're not far from doing the real thing. It reminds me of the law of attempt. You have to police this slippery distinction between seriously preparing to commit a crime and simply considering commiting a crime.

    Bonus question: what if the world of the comics contains adults who appear to be physically immature?

    To quote Andy Bernard, "yeah, I took Philosophy 101. Twice. It's no big deal."

15. Charles  •  May 28, 2009 @2:23 pm
    

    Given the handwritten amendment to the expiration of the offer in the plea agreement (Query: you couldn't just print out a new copy, U.S. Government?) I suspect that it was under negotiation for quite a while. I wonder if this was while a challenge to the statute was being made.

    If not, I have to wonder why the attorney didn't get an exception to the plea that allowed him to stipulate to the facts and raise specific legal claims on appeal as the defendant did in Watson.