Manga Cop-Out at the Swedish Supreme Court

March 16, 2016
By

Manga-is-not-a-crime-300x300In the abstract, most people in free societies would probably agree that no one should be fined or thrown in jail simply for possessing drawings of any sort. But when the drawings in question are certain varieties of manga, often the fear of being tarred with the child porn brush overcomes the will to defend freedom of speech. This holds true even in the reputedly permissive country of Sweden, as a recent article at Medium shows.

From 1971 to 1980 all types of pornography, even the most extreme, were legal in Sweden. In 1980 lawmakers rightly protected real children from exploitation and abuse with new legislation outlawing the production and distribution of child porn. It was not until 1999 that possession of child porn was also outlawed, and even that came with much debate, wrote Swedish publisher and translator Karl Andersson at Medium. Although the lawmakers probably did not envision it would ever be much of an issue, they wrote the law to encompass drawn images, theorizing that “it cannot be ruled out that a living model was used as part of the production.”

In 2011, though, that provision spelled disaster for Sweden’s top manga translator Simon Lundström. In the midst of a custody dispute, his ex-girlfriend accused him of sexually abusing their two-year-old daughter. City of Uppsala police found that charge to be baseless, but a search of Lundström’s computer turned up manga images they believed to be illegal under the child porn laws. Out of his entire collection, estimated at four million illustrations, the local prosecutor brought charges against him for 51 of them.

An investigator who was called as an expert witness in Lundström’s trial outlined a nonsensical “fridge test” she routinely used to discern child porn from non-porn: “Is this an image that I could put up on my refrigerator? If the answer is no, there’s a good chance that the image is pornographic.” Lundström was convicted for all 51 images and ordered to pay a fine equivalent to about $2,900. He also had to register as a sex offender and the publisher that he most frequently worked with dropped him like a hot potato, even though they obviously were aware that he had the images because of his work. “It’s frightening when a publisher does not stand up for freedom of speech,” he observed in a newspaper interview. “I was standing there defending what they publish.”

The local verdict from Uppsala was appealed to a regional court, which upheld Lundström’s conviction for 39 of the images but decided the other 12 were not pornographic after all. Now that the Swedish public was able to see and discuss some of the drawings for which he had originally been convicted, prevailing opinion turned firmly in his favor. Medium contributor Andersson even interviewed mangaka Arino Hiroshi, whose work was among the 12 cleared illustrations. He was shocked that such a thing could happen in liberal Sweden and observed that “it is central that there is no concrete victim.”

Lundström appealed his conviction for the remaining 39 images to the Supreme Court. As in the U.S., a decision from the highest court had the potential to affect not only the case at hand, but also the constitutionality of the law under which Lundström was prosecuted. But in the end, even the Supreme Court found a way to absolve him while preserving the legal definition of child porn which encompasses drawn images. The 16 justices ruled that all but one of Lundström’s 39 images were “unrealistic” and thus not pornographic. The last one, still officially unviewable by the public, was deemed to be “realistic,” but since Lundström possessed it for professional reasons he was acquitted on that charge as well.

Lundström and others who have seen that 39th image in court (as well as in some Internet forums) say that it does not differ in any substantial fashion from the other illustrations. It appears the justices chose that one more or less arbitrarily, just so they could avoid nullifying the ban on drawn images considered to be child porn.

Lundström’s case has much in common with that of Christopher Handley, a manga collector from Iowa who was prosecuted under the PROTECT Act, which also encompasses drawn images. Since Handley struck a plea deal on advice of his legal counsel, his case never even went to trial and that provision of the PROTECT Act remains untested in U.S. courts. But the Swedish case is a potent reminder that even top justices who are well-acquainted with the principles of free speech may skirt around those ideals when faced with the strong taboo on child porn. Check out Andersson’s full article at Medium.

Help support CBLDF’s important First Amendment work in 2015 by visiting the Rewards Zonemaking a donation, or becoming a member of CBLDF!

Contributing Editor Maren Williams is a reference librarian who enjoys free speech and rescue dogs.

Tags: , , , ,