Understanding Your Rights FAQ – What Do Obscenity & Related Laws Mean?

October 9, 2013
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Manga-is-not-a-crime-300x300Comic Book Legal Defense Fund frequently receives questions from our community about one’s rights relating to comics, so we have created this column – “Understanding Your Rights” as a series of FAQs to help clearly explain these concepts.  Today’s column arises from questions about the legality of the creation, collection, possession, and/or transporting of comics and related graphic publications that may contain content of a sexual nature. Past inquires have involved “adult” comic books, hentai, manga, and various sub-genres. CBLDF’s General Counsel Robert Corn-Revere now provides some general guidance for our members. The following frequently asked questions, and the answers to them, may be helpful.*

What legal protections do I have?

In the United States, freedoms of speech and of the press are protected by the First Amendment to the Constitution. State constitutions also protect freedom of expression. While these legal protections are powerful, they are not unlimited. Depending on the nature of the regulation, and type of content involved and/or circumstances under which it is disseminated, the government may impose restrictions or requirements. Also, the federal and state constitutions do not protect you outside the United States.

Do comics receive the same constitutional protections as newspapers?

Yes. It has long been settled that graphic arts – including comic books – qualify as “speech” or “press” entitled to the same First Amendment protection under the Constitution as any other mode of expression.

What are some of the exceptions to constitutional protection?

Under prevailing law, some categories of speech are commonly viewed as “unprotected” by the Constitution. These include obscenity, child pornography, incitement to crime, libel, and “true threats.” Certain genres of comic books and graphic novels may contain content that falls in one or more of these categories. Here are some thoughts that address the primary ways this can occur, and the key concepts involved:

What is “obscenity” and how is it treated under the law?

“Obscene” materials are prohibited by federal law regardless of the medium of communication.

Federal statutes prohibit producing “obscene” visual depictions with intent to transport, distribute or transmit them, or to produce them with the intent to distribute or sell, or to sell or transfer them. It is also unlawful to knowingly sell, possess with intent to sell, transfer, mail, import, or transport any obscene visual depiction, or to knowingly receive or possess such obscene visual depictions with the intent to distribute. States have similar criminal prohibitions in their laws.

Although the word “obscene” is often used in casual conversation to mean stuff that is generally distasteful, offensive, and/or sexually explicit, it is a specific term of art that is defined by law and is limited to sexual matters. Under most U.S. laws the material must be, at a minimum, a hard core depiction of offensive sexual conduct.

More importantly, because obscenity involves expression, all federal or state laws must satisfy First Amendment requirements. This means that before speech can be condemned as obscene – even if it is sexually explicit – it must satisfy the test for obscenity laid down by courts.

How do the courts define obscenity?

A visual depiction is “obscene” if it meets the Supreme Court’s three-part test set forth in Miller v. California. That test limits obscenity to works that, taken as a whole, (1) appeal to the prurient (e.g., shameful or morbid) interest in sex; (2) portray sex acts (as defined by statute) in a patently offensive way, and (3) lack serious literary, artistic, political, or scientific value. All three parts of the test must be met for a work to be legally obscene.

The first two parts of the Miller test are applied under “contemporary community standards” for the locality where material is reviewed, while the third part – whether a work has “serious merit” – is based on a national standard for the so-called “reasonable person.” This means that what is not considered patently offensive or morbid in, say, New York or Los Angeles, can still be considered beyond the pale in other parts of the country.

A work may be saved by a finding it has “serious literary, artistic, political, or scientific value,” but local juries are asked to decide what the proverbial “reasonable person” would think. Given that, and the indeterminate nature of Miller criteria, obscenity crimes are unique in that you do not know you committed the crime until a jury (or judge) makes a finding against you.

Doesn’t something have to be photographic to be obscene?

No. Obscene visual depictions can include, of course, filmed or photographic depictions of persons engaged in acts of explicit sexual conduct. However, it can also include any visual depiction that fits the prescribed criteria, including illustrations, computer-generated images, and other drawn or rendered matter. This can include comic books. In fact, there have been obscenity prosecutions for underground comic books in the past, and, more recently, against sexually explicit anime. Also, in very rare circumstances, there have been prosecutions for written descriptions of sexual conduct.

What is the difference between “obscenity” and pornography, and how do drawings that may depict those appearing to be minors factor into the equation?

Not every depiction of sexually explicit conduct, or even all hardcore adult content, qualifies as “obscene.” Far from it – in fact, the vast majority do not.

Pornography is a general term – not a legal concept – that refers to sexually oriented entertainment. Obscenity, on the other hand, is limited to explicit depictions of “extreme” sexual acts. These can involve images reflecting pain, force, or humiliation, acts involving urination, defecation, menstruation or lactation, sado-masochism, sex coupled with degrading dialogue, bestiality, and other more “outré” practices.

Crossing social taboos also factors into obscenity analysis, such as where a work depicts incest, or involves minors. As to the latter, while depictions of actual sex involving real minors would be treated as child pornography (see below), even “fictionalized” minors – including drawings such as those seen in comics – can cross the line into obscenity. The same goes for bestiality that involves not actual animals, but drawn and/or anthropomorphized animals depicted in explicit sexual manners. Even sex acts that might not be held legally obscene if adults are depicted, can cross the line into obscenity simply because the depiction includes images of minors, or child-related imagery.

What is “child pornography” and how is it treated under the law?

The term “child pornography” is misleading since “pornography” is not a legal concept. The law is directed toward prohibiting visual depictions of sexualized child abuse. As a consequence, it focuses on recognizable depictions of actual children. Some of the strongest criminal laws are reserved for child pornography. The mere knowing possession or intentional online viewing of child pornography carries serious penalties.

Federal law criminalizes visual depictions of minors engaged in “sexually explicit conduct” that includes sexual intercourse (of all forms, genital-genital, anal, oral, etc.), bestiality, masturbation, sadistic or masochistic abuse, and lascivious exhibition of the genitals or pubic area.

The term “lascivious exhibition of the genitals or pubic area” is the most amorphous of these terms because it is not defined by statute. Rather, whether a depiction is a “lewd exhibition” depends on several factors that weigh the inherent sexual nature of the image. This looks to whether a depiction focuses on the genitals or pubic area, manifests sexual suggestiveness in setting, pose, or clothes (or lack thereof), and conveys a sexual attitude among the individual(s) depicted. Another key factor is whether the image intends or is designed to elicit a sexual response in the viewer. Also, this is a non-exclusive list, meaning courts are free to ignore some of the factors, or add new ones, at their discretion. Note as well that nudity is not required.

This is a principal difference between obscenity and “child pornography.” Obscenity requires a depiction of hard-core sexual activity that is patently offensive and meets the other elements of the Miller test. “Child pornography” does not necessarily require the depiction of a sex act, and the other requirements of the obscenity test need not be met. It does not matter, for example, whether the work at issue may have “serious merit” of some kind. If it depicts a minor in a sexualized way (as defined by the law) it may be prohibited.

One thing that is required, however, is that the depiction use actual children. This does not mean that only photographs can be child pornography – though, or course, they certainly can – but rather, “composite” or “morphed” images that depict or position an actual, recognizable child, in a sexualized manner fitting the definition of “child pornography” will qualify. The same is true of computer-generated or –manipulated images of actual minors. Images of wholly fictionalized children, however, cannot be “child pornography.”

Can material involving children still be “obscene” even if it is not “child pornography?”

Yes. Depicting children engaged sexually explicit conduct and/or including them in sexualized settings can be obscene.

Even if a depiction uses only fictional children – or, indeed, only drawn, painted, rendered, etc., characters that are wholly fantastical and/or lack any real-world counterpart – the content can still potentially be obscene. So long as the depiction portrays sexual conduct as specifically defined by law in a patently offensive way, as to appeal to the prurient interest, and is adjudged to lack serious value, a work can be obscene. Indeed, the very presence of children and/or child-like themes, which society presumes should be divorced from sexual knowingness or overtones, can be a deciding factor in what contemporary community standards deem “obscene.”

Of course, it is possible for sexualized depictions of actual children to violate both obscenity and child pornography laws. It is fair to say that any depiction of an actual underage person that satisfies the Miller test for obscenity will also violate child pornography laws.

What are “harm to minors” laws?

Many states have laws that prohibit disseminating to children material that is “harmful to minors.” For material to fall into this category, the same three-part test for obscenity applies, but with the gloss that a jury (or judge) must determine whether the material appeals primarily to a prurient interest in sex for minors and whether it lacks serious merit for minors. For that reason, this area of the law is known as “variable obscenity.”

As with adult obscenity, the work must be evaluated as a whole. A book should not be considered “harmful to minors” if a few passages or a few images are considered to be too mature for children.

The question of “serious merit” for minors can present difficult problems, insofar as it suggests that material that has serious literary, artistic, political or scientific merit for adults does not necessarily have the same value for teens at the threshold of majority. The Supreme Court has not yet resolved this issue. However, courts have ruled that such laws must evaluated by whether the material at issue has merit (or is patently offensive) for the average seventeen-year-old, not the average five-year-old.

A key difference between “harmful to minors” material and obscenity is that adults have a First Amendment right to access “harmful” material. Consequently, state laws cannot ban such material, but may only limit access by minors without unduly restricting availability to adults.

Can I get in trouble even if the material I have is constitutionally protected?

Yes. It is important to know that constitutional protections are not self-enforcing. Law enforcement authorities or customs agents may have a different threshold for what they consider to be obscene, harmful to minors, or child pornography.

For example, comic book purveyors have been prosecuted under “harm to minors laws” for furnishing young customers with titles (even inadvertently) that included a few panels of nudity, and references to (though not depictions of) masturbation. Such cases illustrate important issues in cases involving “harm to minors” laws.

Generally, there is a lower (and less well-defined) threshold for the type of content that may trigger a controversy or a prosecution, but that could not support an ultimate conviction. Also, because “harm to minors” laws seek to limit distribution of materials to minors but cannot impose a ban for adults, the central inquiry may focus on how materials are displayed and marketed.

The differing threshold for what might trigger an inquiry has a special application when crossing national boundaries, as discussed in the next section. For various reasons, fewer legal protections are available in this context.

The special problem of crossing the border – what do I need to know?

Generally speaking, individuals in the U.S. have the right under the Fourth Amendment to be secure in their persons, houses, and possessions against unreasonable searches and seizures. This means any search or seizure requires a warrant issued by a judge as supported by probable cause to believe a crime is being committed. The protection against unreasonable search and seizure is especially important where the material at issue is also protected by the First Amendment.

There are exceptions to the warrant requirement, such as searches incident to being arrested, exigent circumstances (e.g., an emergency or the possible destruction of evidence), objects found in plain view, etc., as well as exceptions where only “reasonable suspicion” (rather than probable cause) is required.

A key exception that has become more and more problematic is the so-called “border search.” Travelers to and from the United States may be searched by customs agents without the need for a warrant. This broad exception exists based on the United States’ interest in preventing entry of unwanted persons and effects at its international borders. Border searches of people and their property are considered to be reasonable, meaning they typically do not require a warrant, probable cause, or even reasonable suspicion. Courts are beginning to grapple with the complexities of this issue as people increasingly travel with laptop computers and smart phones than can house a vast wealth of personal information.

There have increasingly been cases where persons entering (or reentering) the U.S. have been stopped on little more than a border agent’s “hunch” and had their bags, computer(s), and/or other electronic devices searched. And, as these agents may not always be well-versed on the finer points of whether content falls under a constitutional exception, and/or are on heightened alert for anything involving sex and children – even non-photographic content – there are risks when certain materials are involved, including potentially comic books of certain genres.

For more information on this problem, the CBLDF has issued this advisory.

Blame Canada?

Protections for free speech and the scope of permissible regulation of expression differ in Canada from that found in U.S. law. CBLDF is aware of incidents where U.S. citizens seeking to cross into Canada had their computers searched and/or seized on grounds that they contained “child pornography,” even though the materials at issue would not have qualified as such in the U.S.

As explained in CBLDF’s legal memorandum on Pornographic Anime and Magna Under Canadian Law, Canada has some of the most stringent laws on child pornography and related material, which are particularly onerous due not just to serious mandatory minimum sentences, but to the broad definition of “child pornography” in Canada’s Criminal Code. It is accordingly recommended that comic book and manga collectors (among others) familiarize themselves with the CBLDF memo, and be aware when either travelling to Canada or conducting transactions – online or otherwise – with Canadian entities.

Justifications for Regulation Other Than Sexual Content

The inclusion of content of a sexual nature is not the only reason that comic books have been targeted under the law historically. Comics have also been cited for assertedly violent content. Themes of disrespect for authority, or the established social order also have been cited. They were even tied to juvenile delinquency and youth psychological problems. Many of these concerns have been debunked, or become déclassé with the passage of time, and the First Amendment has rendered some of them academic.

But efforts to regulate consumption of “violent” content by children – an audience that, rightly or wrongly, persists to some degree in public perception as comics’ target market – have never truly abated. In fact, it recently took a Supreme Court decision on violent videogame regulations to slow down the zeal with which such laws were being passed. As such content-based concerns percolate through the media generally, those with an interest in comic books and graphic novels should keep abreast of developments, and take steps to avoid “gray areas” as such arise.


*These FAQs are not intended to serve as legal advice, but to provide a general understanding of certain issues that some comics may raise. If you have any questions of a legal nature regarding any material that you possess or may wish to acquire or create, you should consult qualified counsel.