A federal appeals panel has upheld the 20 year sentence of a lolicon found to have received illustrations of underage sex by email, saying that “it is not a required that the minor depicted actually exists”, and so ruling art not to be universally protected free speech.
The court also insisted that purely textual email containing incest related material was not constitutionally protected free speech, and so also upheld his conviction on these grounds.
The man concerned (55), a resident of Richmond, Virginia, is serving a 20 year sentence after being convicted in 2005 of “receiving 20 Japanese cartoons, called anime, illustrating young girls being forced to have sex with men”, which he rather unwisely received using a public computer at the Virginia Employment Commission.
Additionally, he was found to have sent and received incest related emails of a purely textual nature, which were judged to be obscene and therefore not constitutionally protected free speech.
Clouding the issue further, the man apparently also received unambiguously illegal photographs of underage sexual conduct.
All this resulted in a jury convicting him of 74 offences, including receiving obscene materials, receiving obscene visual representations of underage sex, receiving child pornography and sending and receiving obscene emails. His sentence of 20 years was the maximum possible.
The notorious PROTECT Act of 2003, which permits arbitrarily stripping material of its First Amendment protections if it can be judged obscene according to the criteria of the Miller Test, was instrumental in securing these convictions; in fact this represents the first successful conviction under it.
In his appeal against the convictions, he claimed that the illustrations were protected by the First Amendment, as they do not depict real children. He also claimed the PROTECT Act was unconstitutional as textual emails cannot be considered obscene.
The judges would have none of it, holding that the act was made for the protection of imaginary children:
“It is not a required element of any offense under this section that the minor depicted actually exists.”
One of the three judges did accept his arguments, though this had no impact on the majority ruling. The convictions for the photographs did not come into question.
The man intends to continue elevating the appeal, to the Supreme Court if necessary, in order to get the relevant parts of his conviction quashed.
It is not his first brush with the law: in 1999 he was sentenced to nearly four years for possessing pornography depicting minors, so clearly he is not the most charismatic appellant.
The PROTECT Act of late seems to be coming to the fore in relation to cases involving loli manga; there is also the recent case of an Iowa man facing similar convictions, although in his case without any real imagery involved.
Given that so much anime and manga, both mainstream and erotic, revolves around sexual situations involving participants clearly under what US law would regard as a legal age for such depictions to not constitute child pornography, just how much of mainstream anime and manga, to say nothing of actual pornography, will eventually come under the remit of such laws should they go unchecked?
With lower courts and national politicians gleefully stripping both speech and art of Constitutional protections using the evils of underage sex as a lever, we have to wonder whether the Supreme Court will actually rectify matters at some point?