Cartoons . . . Again

A couple of weeks ago, I did a post about the Australian case in which a court held that cartoons showing Lisa, Bart and Maggie Simpson having sex with each other (who comes up with this stuff?) was child pornography under Australian law.

I explained that cartoons do not constitute child pornography under U.S. law because the U.S. Supreme Court held, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), that child pornography can only be criminalized because, and to the extent that, its creation involved the use of real children. The Court said that if real children are not involved, then the material is speech protected by the First Amendment.

This post is also about cartoons showing children engaged in sexual activity, but the legal issues are different.

In 2003, the Prosecutorial Remedies and Tools against the Exploitation of Children Today Act (PROTECT Act), Pub.L. 108-21, Title V, § 504(a), 117 Stat. 681, created several new crimes, one of which is producing, receiving, possessing or manufacturing obscene child pornography. The offense is codified as 14 U.S. Code § 1466A.

Section 1466A defines obscene child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that depicts (i) a minor engaging in sexually explicit conduct and is obscene (§ 1466a(a)(1); or (ii) “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value.” (§ 1466A(a)(2)). The second option is intended to implement the U.S. Supreme Court’s standard for determining what is, and is not, obscene: In Miller v. California, 413 U.S. 15 (1973), the Court held that to be constitutional under the First Amendment, obscenity statutes must “be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”

This post is about the U.S. Court of Appeals for the Fourth Circuit’s recent decision in U.S. v. Whorley, 2008 WL 5265645. Whorley was convicted of violation § 1466A under the first alternative noted above, i.e., possessing a visual depiction that depicts a minor engaged in sexually explicit conduct and is obscene. The conviction was based on his “receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct”. U.S. v. Whorley, supra.

On appeal, Whorley challenged the conviction, arguing that this part of the statute

is unconstitutional as applied to the cartoon drawings that formed the basis for the charges . . . because cartoon figures are not depictions of actual people. He argues that § 1466A(a)(1) necessarily requires that the visual depictions be of actual minors and that if the depiction of an actual minor is not required, then § 1466A(a)(1) would be unconstitutional on its face. . . .

U.S. v. Whorley supra. As I explained in my prior post on a prosecution involving cartoons, under the Supreme Court's decision in Ashcroft, the First Amendment would bar criminalizing the possession of cartoons, even if they depicted children engaged in sexual activity. Whorley was relying on that case in making the argument outlined above.

But he was not convicted of a child pornography crime. He was convicted of violating § 1466A, which is kind of a fused child pornography-obscenity statute. As I noted above, the Supreme Court has held that material which is obscene under the Miller standard can be criminalized without violating the First Amendment. (As I noted in an earlier post, I have my doubts as to whether the obscenity exception to the First Amendment will survive in a networked world, but that’s another issue entirely.)

Whorley lost. The Fourth Circuit began by noting that – as you can see from the portion of the statute quoted above -- § 1466A explicitly applies to cartoons. It also pointed out that one section of § 1466A -- § 1466A(c) – “unambiguously states that `[i]t is not a required element of any offense under this section that the minor depicted actually exist.’” U.S. v. Whorley, supra. The court then addressed the issue I noted above, i.e., that § 1466A is really an obscenity statute:

[Whorley argues] that if an actual minor is not required to be depicted in § 1466A(a)(1), then the statute is unconstitutional. . . . There is. . . no suggestion that the cartoons in this case depict actual children; they were cartoons. Relying . . . on Ashcroft v. Free Speech Coalition, Whorley points to the observation made in that opinion that the First Amendment does not protect `. . . obscenity, and pornography produced with real children,’ but that a ban on non-obscene material that did not use real children was impermissibly overbroad. . . . The Court in Ashcroft noted further that [its decisions] `provide[d] no support for a statute that eliminates the distinction [between actual and virtual child pornography].’ Thus, he asserts that the First Amendment protects non-obscene pornography that does not depict real children.

But in making his argument, Whorley ignores the language of § 1466A(a)(1), which prohibits visual depictions of minors only when they are obscene. . . . Ashcroft itself noted that obscenity in any form is not protected by the First Amendment. . . . Thus, regardless of whether § 1466A(a)(1) requires an actual minor, it is nonetheless a valid restriction on obscene speech under Miller, not a restriction on non-obscene [child] pornography. . . .

U.S. v. Whorley, supra.

The crime § 1466A(a)(1) creates is peculiar. It’s an obscenity crime, which seems unproblematic at first glance, but I wondered why we needed another federal obscenity crime when several already existed. Section 1462 of Title 18 of the U.S. Code has been around since 1948 and, since it criminalizes importing obscene materials, could have been used to prosecute Whorley to the extent that the cartoons he downloaded were obscene. That brings me to the other aspect of the § 1466A(a)(1) crime: It seems like an end run around the Supreme Court’s holding, in Ashcroft, that virtual child pornography cannot be criminalized. This statute criminalizes virtual child pornography, but only if it’s obscene, which seems redundant and . . . peculiar.

Section 1466A(a)(1) was apparently added to the federal criminal code as the result of a suggestion made by the National Center for Missing and Exploited Children. In testimony the Center submitted to Congress when it was considering the PROTECT Act, NCMEC said the best way to deal with child pornography is to use obscenity crimes because “99-100 percent of all child pornography would be found to be obscene by most judges and juries.” NCMEC, 149 Cong. Rec. S2573-02, S2580 (Feb. 24, 2003). It seems, then, that the § 1466A(a)(1) was intended to be an end run around the Ashcroft Court's holding.

I really don’t know what I think of this decision. It’s absolutely correct in terms of the language of § 1466A; the crime for which Whorley was convicted was an obscenity crime, not a child pornography crime. But I’m not sure I think prosecuting someone for downloading obscene cartoons depicting children is a particularly good use of federal resources.