Obscenity Law and the PROTECT Act: The Christopher Handley Case By
Christopher Handley is 39 years old. He lives in Glenwood, Iowa, and works in an office. He collects comic books, specifically manga. In May 2006, he went to the post office to pick up some manga he ordered from Japan. On his drive home, he was pulled over by multiple police authorities. They did not like the manga he was reading. They followed him home, and they searched his house. They went through all his belongings, and confiscated “1,200 manga books or publications and hundreds of DVDs, VHS tapes, laser disks; seven computers, and other documents.”1 Of all this material, the government objected to a reported 150-300 single images.2 As a result, Handley is now facing 15 years in prison, a $250,000 fine, and a three-year supervised release.
The charges against Handley are “Mailing Obscene Matter” and “Possession of Obscene Visual Representations of the Sexual Abuse of Children.” The law may not be misinterpreted here. Under the PROTECT Act of 2003, or the Amber Alert Law, explicitly forbidden “obscene visual representations” include “drawings, cartoons, sculptures, or paintings.”3
“This needs to be challenged at the highest level,” says Paul Cambria, among the most renowned attorneys in First Amendment law. “When you get to special child pornography statutes, it seems to me you need a real child involved. And I think that when you move on to a creation, an artwork, even if it is a disgusting artwork, it still is an artwork—a cartoon is an artist’s rendition—that we really have taken it too far at that point in time because the penalties are huge.”
Despite most being surprised at the law, Handley is not the first person to have been convicted of possession of obscene drawings of minors. Dwight Whorley, of Richmond, VA, was the first to be convicted in November 2005.4 The case spawned little legal controversy because Whorley was additionally charged with possession of child pornography—the real thing. In fact, Whorley was already a registered sex offender for receiving child pornography in 1999. Furthermore, in 2005, Whorley was using a public computer at the Virginia Employment Commission office to view the materials. Whorley was sentenced to 20 years for the just the pictures. A court of appeals affirmed the conviction and sentencing last December.5
But Handley was not a registered sex offender. By definition of the charges against him, nothing he owned suggests that any abuse of actual people took place. He had drawings. But because his drawings could be considered obscene under Miller v. California of 1973, he was prosecuted.
The definition of obscenity, or the Miller test6, uses three “prongs”:
the average person, applying contemporary community standards must find that the work, taken as a whole, appeals to the prurient interest
the work depicts or describes, in a patently offensive way, sexual conduct (or excretory functions) specifically defined by applicable state law
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (known as the (S)LAPS clause).
Charles Brownstein, executive director of the Comic Book Legal Defense Fund, special consultant to the defense of Mr. Handley, argues for the legitimacy of most comics under the obscenity definition:
“… comic art from the manga tradition through the various North American traditions, and other international standards of comic art, all exist within a continuum of art and illustration history that creates a serious merit for the material … certainly the material at hand in Mr Handley’s case fell within a larger continuum of art history for manga… most comic art does not exist in a vacuum where it isn’t informed by a larger art tradition and in most cases it may be racy, it may appeal to adult consumers, but it is not without redeeming value that would make it obscene... in the eyes of the general American culture comic books are no longer stigmatized… But I do think that, in areas of law, that the legal system has not quite caught up to that larger cultural understanding…”
Brownstein is correct about the legal system’s position on comic books. During the investigation, Handley was forbidden from viewing any manga or anime, despite most of his collection being viewed as legal by authorities. And although manga is a large artistic movement turned genre, Handley knew he was subject to the “community standards” of his Iowan jury, not an Internet forum. So, even with an arguably good case, with CBLDF and legendary Neil Gaiman raising $40,000 for manga and First Amendment experts to testify, they settled on a plea agreement.7
Handley was originally facing three counts of the “receipt and possession” of obscene visual depictions. If found guilty, he would have received a minimum of 15 years in prison, each count contributing five years. The PROTECT Act’s punishment for owning visual depictions is the punishment for possession of child pornography. The lawmakers did not simply copy and paste; they actually refer to the child pornography punishment clauses of 2252A, paragraph (b).89 In legal terms, they called him a pornographer and threatened to punish him for it.
The plea agreement drops the receipt and possession charges, and instead Handley pleads guilty to one count of possession and one count of mailing obscene matter, neither of which require a minimum term of imprisonment. Receiving manga from across state lines could cost him five years; owning it in his home could cost him 10. Again, 10 years is the maximum punishment for owning actual child pornography, equating the ownership of a raunchy comic book with the support of the tremendous psychological harm inflicted on sexually abused children. Does the law mean to send this message? Does it want to?
Lawmakers argue that visual depictions of the sexual abuse of children, if they offer no redeeming merit to the stories they depict, encourage child abuse. Others argue that they provide a harmless outlet for otherwise potentially harmful addictions. Joan Irvine, of the Association of Sites Advocating Child Protection, argues “There are no actual victims with anime and Hentai as these images are drawn and children are not actually involved. ASACP believes that the limited resources of law enforcement, government, and child protection associations should be devoted to protecting and helping the many real victims of sexual child abuse.”
Child abuse in Iowa has been declining, but the majority of abuse (79 percent) last year was the result of neglect. Sex abuse accounted for 4 percent.10 Nearly half Japan’s increasing child abuse rates, partly due to better reporting, are from physical cruelty. In the country notorious for its visual depictions, sex abuse accounted for 3.1 percent.11
Iowa and the United States are not the only places divided by issues of explicit drawings. Legal battles are taking place in Canada, Britain, and even Japan (though mostly through international pressure).12 Japan’s laws on “virtual pornography” have only recently allowed the display of pubic hair and penises. Still, most illustrators leave it out anyway. A Google image search of “manga sex” returns 908,000 results. Replace “sex” with “penis” and 224,000 hits result; replacing “penis” with “pubic hair” effects 33,000 hits. All these sexual drawings without pubic hair only add to the trouble of identifying “minors.”
Handley probably will not receive the maximum penalty. This is his first violation, and again, he has no photographs or movies of actual people. All he did was buy comic books. Probably the best news for Handley is that although the law concerns (fake) children, “neither [the mailing nor possession] offenses are specifically listed in SORNA requiring sex offender registration,” writes Law Enforcement Coordinator Mike Bladel in an email correspondence. (Mike Bladel represented Eric Gaumer, the prosecution for the case, who did provide comment).
But even though the court is sensible enough to not register Handley as a sex offender, it comes as a shock to much of America that we are not as free as we thought. The Supreme Court holds that obscene material is not protected by the First Amendment, that it is not suitable even for adults to read. You are technically allowed to possess it in your home, but you may not receive it, and no one else may distribute it to you. If you wanted to draw or write something obscene, that is obscenity production and punishable under the law. And these laws have been on the shelves and enforced since the early 1800s.
While the current definition of obscenity is not that old, it is not that new either (1973).13 The most shocking thing about this case in particular is the great inequity between the cruel punishment and the alleged violation. The chilling effect of the case is the fear that the government is allowing morality to slip law further into the law. Gratuitous violence is protected under free speech; only sex can be offensive under the Miller test.
“My belief is that the written word and the artistic rendition,” says Cambria, “whether it be disgustingly artistic or not, the creation of something, shouldn’t be the subject of obscenity. The Supreme Court has disagreed with that.”
And the PROTECT Act has taken that disagreement further. The question is how to change the law without being prosecuted.
“I mean it’s possible, but you’d have to have standing, and that means you’d go in and say, ‘Well, I have this book, and I’d like a declaration.’ I don’t think people are about to do that. Or you’d say, ‘I want to draw pictures like this,’ and try to convince the courts that that would be ripe enough for current litigation. So short of an actual prosecution it’s going to be difficult.”
And this worries many, especially comic book fans and other misunderstood sub-cultures (and the sub-sub-culture of manga). Many feel threatened now. Brownstein expresses this:
“I think that while we all know that there’s not a binding legal precedent to a plea agreement … we just don’t want to see other people, innocent collectors who have a passion for the genre, and are not threats to members of their community, facing the same sort of hardship as Mr. Handley. So, our best hope is that this ends with him. Our greatest fear is that this spreads like a wildfire.”