Comics are still in the cross hairs in battle against censorship. This is most evident in the case of Christjan Bee, a Missouri man who will spend three years in federal prison because of the comics he possessed.
Bee was prosecuted under the PROTECT Act (Section 1466A of the United State Code) and after accepting a plea agreement was ultimately sentenced to three years in prison without parole and five years of supervised release for possession what the government characterized as a “pornographic cartoon, which depicted children engaging in sexual behavior.” Prosecutors assert the material “is categorized as obscene and therefore illegal,” despite the fact that the material was not tried in court under the Miller obscenity test. Bee did not seek the CBLDF’s assistance. Without expert First Amendment counsel and facing intimidating mandatory minimum sentencing guidelines, Bee pleaded guilty to possession of obscene material rather than stand trial under the original indictment of receiving child pornography.
• Obscenity Case Files: Miller v. California
CBLDF Executive Director Charles Brownstein spoke at the time about the material for which Bee was arrested:
“At this time, little is known about the material Bee pleaded guilty to possessing. Based on the government’s characterization of the material, I remain unpersuaded that it is legally obscene under the Supreme Court’s Miller obscenity test. It is also distressing that Bee is being sent to prison for mere possession of obscene material, when there is precedent that the court’s power ‘does not extend to mere possession by the individual in the privacy of his own home.’ Even absent full specifics on the material Bee pleaded guilty to possessing, this is, on many levels, a distressing case.”
In discussing the case for this story, Brownstein added, “The key question one must ask when considering the Bee case is if the government’s facts were sufficient to charge him under 1466A, which is about combating the sexual exploitation of minors, why did they change course to pursue an obscenity conviction? If 1466A is about protecting innocent people from exploitation and abuse, and the government regarded Bee as an actual threat to real children because of the comics he possessed, why was this deal in the public’s interest? The case’s facts are troubling, and I suspect could have had a different outcome if Bee had access to expert counsel.”
Bee was prosecuted under the PROTECT Act, a 2002 federal law that criminalizes depictions of obscene sexual conduct involving minors. Congress passed the law just after the Supreme Court ruled that a federal ban on “virtual” child pornography violated First Amendment rights. Although the sexual abuse and exploitation of children is already a crime that, quite properly, carries heavy consequences, PROTECT expands that definition to criminalize non-photographic renderings of non-existent figures with penalties similar to those meted out for actual acts of sexual abuse.
Christopher Handley, an ardent manga collector, was also prosecuted under the PROTECT Act. In Handley’s case, CBLDF was called in to provide expert witnesses, but the Fund never had the chance to fight for Handley. Also fearing trial, Handley took a plea agreement.
• CBLDF Case Files – U.S. v. Handley
CBLDF frequently battles federal and state laws similar to the one under which Bee was prosecuted because of the risk they pose to protected speech. Frequently, the laws are so broadly worded that non-obscene speech — which is protected under the First Amendment — can be targeted.
• Free Speech Advocates Score Victory in Utah
• Florence v. Shurtleff – The What’s and Why’s in Plain Language
• Justice Stevens’ Solitary 2002 Objection to COPA Analyzed
The material for which Bee was prosecuted was on his computer, and it was brought to the attention of the authorities by Bee’s own wife. The government described it as a “pornographic cartoon, which depicted children engaging in sexual behavior.” Prosecutors called the material obscene, but without a jury trial, it is unknown whether they truly were. Although the government alleged that the comics featured minors engaging in sexual conduct — not everyone’s cup of tea to be sure — that fact alone is not necessarily enough to render them obscene. Brownstein said:
“The government’s statements that the comics came from an electronic file folder called ‘incest comics’ and depicted minors engaged in sexual conduct certainly may be enough to make the work distasteful, but that’s not enough to deem a work obscene. The government’s description can easily describe a variety of comics that possess artistic and literary merit, including Robert Crumb’s ‘Joe Blow,’ a story I frequently lecture about because it was the subject of a badly reasoned obscenity conviction in the 1970 case People v. Kirkpatrick. It could also apply to any number of meritorious works of comic art, including the works of Alan Moore, Ariel Schrag, Phoebe Gloeckner, and others. Distasteful or disturbing subject matter does not make work obscene. ”
Bee didn’t have knowledge of CBLDF, and ultimately took a bad deal to sign his life away. This stands in contrast to the victory in Ryan Matheson’s stand against Canadian authorities, who tried to prosecute him for the possession and importation of child pornography based on constitutionally protected manga images on his computer. The charges would have carried a prison term, a fine, and sex offender registration. Matheson called CBLDF for help, and we were ultimately able to clear him of any criminal wrongdoing.
• CBLDF Case Files – R. v. Matheson
CBLDF has also scored several quieter, behind the scenes victories, in large part because people have come to us for help. If Bee had solicited CBLDF’s help, we might have been able to determine the true facts of his case in a way that led to a better outcome for him, and for others like him who are being unjustly prosecuted for expressive content in their possession. The bottom line: Readers are being prosecuted for comics material, and CBLDF must continue to build awareness of each person’s rights and continue to do everything we can to protect the right to read.
Brownstein sums up:
“We are disappointed that Bee did not reach out to the CBLDF — we retain an expert legal team, who are able to quickly manage cases against comics, and often get them dropped before they go to court. We’re also alarmed that the government continues to prosecute readers of comics at the cost of taxpayer dollars that would be better spent going after criminals who prey on and abuse real children. The key lesson here is that when a First Amendment emergency strikes, make CBLDF your very first call.”
We need your help to keep fighting for the right to read in 2014! You can help support CBLDF’s important First Amendment work by visiting the Rewards Zone, making a donation, or becoming a member of CBLDF!
Casey Gilly is a comics journalist and cat enthusiast living in Oakland, CA, where she eats tacos and plays ukulele.