As I noted in an earlier post, in 2003 Congress created a new child pornography crime: producing, receiving, possessing or manufacturing obscene child pornography. PROTECT Act of 2003, Pub. L. No. 108-21 (2003). The new crime is codified as 18 U.S. Code § 1466A.
It 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) and § 1466A(b)(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) and § 1466A(b)(2)).
The latter part of the statute is intended to implement the U.S. Supreme Court’s standard for determining what is 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.” Miller v. California, supra.
In this post, I’m going to review two federal court decisions, one of which held that § 1466A is constitutional and the other of which held that it is not. We’ll start with the case that upheld its constitutionality.
In 2004, Dwight Whorley was charged with 19 counts of violating § 1466A(a)(1) after employees of the Virginia Employment Commission discovered he’d been using a computer in their public resource room to download “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.” U.S. v. Whorley, 550 F.3d 326 (U.S. Court of Appeals for the Fourth Circuit 2008). The indictment charged Whorley with “knowingly receiving” the child pornography.
Whorley went to trial and was convicted on all the § 1466A counts. He appealed, arguing, in part, that § 1466A(a)(1) was 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 [it] would be unconstitutional on its face under . . . Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
U.S. v. Whorley, supra. As I’ve noted before, in the Ashcroft case the U.S. Supreme Court held that a statute that criminalized the possession of virtual child pornography violated the First Amendment. The Ashcroft Court applied an earlier Supreme Court decision – New York v. Ferber, 458 U.S. 747 (1982) – which had held that real child pornography can be criminalized without violating the First Amendment because while it’s speech, it is speech the creation of which involves the victimization of real children. The Ashcroft Court held that since virtual child pornography does not involve the use of real children and therefore does not “harm” real children, it cannot be criminalized without violating the First Amendment.
Whorley’s first argument was based on the structure of the provisions of § 1466A(a):
Whorley points out that subsection (a)(1) (prohibiting depictions of `a minor engaging in sexually explicit conduct’) is mirrored in subsection (a)(2) (prohibiting `an image that is, or appears to be, of a minor’). . . . He argues that the `appears to be’ language in subsection (a)(2) indicates reference to a real minor in subsection (a)(1). In addition, he contends that subsection (a)(1) prohibits material depicting `sexually explicit conduct,’ which is defined in 18 U.S. Code § 2256 as referring to real people. Section 2256 defines `sexually explicit conduct’ . . . as actual or simulated sexual intercourse, “whether between persons of the same or opposite sex.” 18 U.S. Code § 2256(2)(A).
U.S. v. Whorley, supra. The Court of Appeals didn’t buy his argument:
While § 1466(a)(1) would clearly prohibit an obscene photographic depiction of an actual minor engaging in sexually explicit conduct, it also criminalizes receipt of `a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,’ that `depicts a minor engaging in sexually explicit conduct’ and is obscene. . . . In addition, Whorley overlooks § 1466A(c), which unambiguously states that `[i]t is not a required element of any offense under this section that the minor depicted actually exist.’ . . . The . . . language is sufficiently broad to prohibit receipt of obscene cartoons. . . .
U.S. v. Whorley, supra. Whorley then tried his First Amendment argument, claiming that if § 1466A(a)(1) did not require that “an actual minor . . . be depicted”, it violated the Supreme Court’s ruling in Ashcroft. As the Court of Appeals noted, there was “no suggestion that the cartoons in this case depict actual children; they were cartoons.” U.S. v. Whorley, supra.
Whorley’s problem was that the Ashcroft Court noted that the First Amendment “does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft v. Free Speech Coalition, supra. The Court of Appeals held that § 1466A can be applied to cartoons and other material that does not depict a real child because it is an obscenity statute, not a child pornography statute; to violate § 1466A, the material must be obscene, which means the statute is “a valid restriction on obscene speech” under the Supreme Court’s ruling in Miller v. California.
A few months earlier, a federal district court (a federal trial court, rather than a federal appellate court) reached a different conclusion with regard to one provision of § 1466A. Like Whorley, Christopher Handley was indicted for receiving (§ 1466A(a)) and for possessing (§ 1466A(b)) obscene child pornography in based on his having acquired Japanese anime cartoons that depicted minors engaging in sexually explicit conduct. U.S. v. Handley, 565 F.Supp.2d 996 (U.S. District Court for the Southern District of Iowa 2008). Handley moved to dismiss the charges, arguing that they violated the First Amendment.
One of Handley’s arguments was an Ashcroft argument that was essentially identical to the argument Whorley made. Like Whorley, Handley lost on the argument because the federal district court judge, like the Court of Appeals, held that the statute punishes the receipt and possession of obscene child pornography, not simply child pornography. Since the statute targets obscene material, the court held, it does not violate the First Amendment. U.S. v. Handley, supra.
The Iowa federal judge reached a different conclusion on Handley’s other argument, which was that the subsections of § 1466A differed in terms of the extent to which they required that the material be obscene. Handley had argued that
subsections 1466A(a)(2) and (b)(2) ban virtual child pornography that is not obscene, prohibiting sexually-oriented speech without considering whether it appeals to the prurient interest or is patently offensive. . . . [T]he only element from the three-prong Miller test incorporated into these subsections of § 1466A is that the depiction must lack serious literary, artistic, political, or scientific value.
U.S. v. Handley, supra. The federal judge agreed. He found that §§ 1466A(a)(1) and 1466A(b)(1) “clearly require the material be obscene and the three-prong Miller test would necessarily be incorporated into the essential elements” of the offenses defined by both provisions. U.S. v. Handley, supra.
The language of subsections 1466A(a)(2) and (b)(2) does not require the material be deemed obscene. Instead, those sections merely require that the jury find the material depicts a minor, or what appears to be a minor, engaging in at least one of the acts enunciated in the list of various sexually-explicit conduct contained in subsections 1466A(a)(2)(A) or (b)(2)(A), and that the visual depiction lacks serious literary, artistic, political, or scientific value.
U.S. v. Handley, supra. As I noted earlier, the (a)(2) and (b)(2) subsections only require that the material depict “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.” The judge in the Handley case held that this did not implement the Miller requirement that the determination of obscenity must focus on three issues:
(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . .
Miller v. California, supra. The judge therefore held that these subsections of § 1466A violate the First Amendment. U.S. v. Handley, supra.
As far as I can tell, the obscene child pornography offense was added to the federal criminal code to give prosecutors an additional option: If they can’t prove that images depict real children, they can still prosecute the person who received, possessed, produced or manufactured them if the images are obscene under Miller. I don’t know why Congress didn’t incorporate the three-pronged Miller test into the statute.
Since Whorley was only charged with receiving obscene child pornography in violation of § 1466A(a)(1), the Miller issue the Handley court addressed did not come up in his case.