Have you heard of the PROTECT Act of 2003? This is a complicated piece of legislation that intends to prevent child abuse.
I think we can all get behind that general concept, right?
But . . . there’s a problem, specifically with the sections about child pornography.
In general, the intention was that child pornography, particularly on the internet, should be prevented and those trafficking in it punished. And here we are talking about images of real children. This kind of material is not covered by the First Amendment.
Sure. All good, so far.
The problem comes in section 504 (a), which expands the definition of “obscene visual representations of the sexual abuse of children” to include “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting . . . [that] lacks serious literary, artistic, political, or scientific value”, whether one “knowingly produces, distributes, receives, or possesses with intent to distribute.” said representations. And then add on section 504 (c): “It is not a required element of any offense under this section that the minor depicted actually exist.” (1)
Now that’s a whole ‘nother kettle of fish. There are several problems here:
- Who determines whether the representation has value?
- How is it child abuse if the depicted minor doesn’t exist?
- With a work of art, how do we tell whether the person depicted is a minor?
- Since when does the government get to tell artists what they can create and what art individuals can possess in their own homes?
So here’s a potential scenario: If you decide to draw a picture of what appears to be an underage child in a sexual situation, even if you never show it to anyone and even if it is purely a product of your imagination, you could be convicted of a felony.
If you drew the picture, your punishment would be “imprisonment for 5 to 20 years for a first offense, for between 15 and 40 years for persons with certain prior offenses, and a fine of up to $250,000”, and if you give the picture to someone else, their penalty for possession would be “imprisonment for up to 10 years for a first offense, for between 10 and 20 years for persons with certain prior offenses, and a fine of up to $250,000”. (2)
And here’s a real life scenario:
Christopher Handley, a manga collector from Iowa, has been charged under the PROTECT Act because he received a package in the mail that included alleged child pornography. The mail in question was seven Japanese comic books. After the postal inspector received a warrant to open the package, Mr. Handley was arrested and the 1,200 comic books in his collection were seized as evidence. Some of his collection included lolicon and yaoi manga, both of which depict young people (or people that appear very young) in sexual situations.
Evidently the district judge handling the case has determined that the applicable sections of the PROTECT Act are unconstitutional, but that Handley may still be tried for the obscenity charge.
As Neil Gaiman has said about the case, “Nobody was hurt. The only thing that was hurt were ideas.”
Now, this is not art I would be interested in creating or looking at. But I will not say that someone else does not have the right to create it or look at it. And I will not agree that drawings, cartoons, sculptures, or paintings, or even needlepoint for heaven’s sake, are the same thing as a photo or video of a child. Putting a child in a sexual situation and taking pictures or videos of it is wrong. Creating something out of one’s imagination is not wrong, and in my opinion should be considered free speech.
1. Text of S. 151 PROTECT Act, Library of Congress. http://thomas.loc.gov/cgi-bin/query/F?c108:6:./temp/~c108Mi6YrK:e83707:
2. Federal Child Obscenity Statues, US Department of Justice. http://www.usdoj.gov/criminal/ceos/obscenity_stats.html