BOB GARFIELD:
This is On the Media. I'm Bob Garfield.
BROOKE GLADSTONE:
And I'm Brooke Gladstone. Earlier this month, a court in New South Wales, Australia, decided that Bart, Lisa and Maggie Simpson are to be considered persons – at least when depicted having sex. And so, it upheld an earlier decision that slapped a 3,000-dollar fine on a man who had images of those underage characters doing unmentionable things.

Last May, our Supreme Court upheld the 2003 PROTECT Act, an acronym for Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today, ruling it illegal to knowingly promote, present, distribute or solicit images of children, whether real, drawn, digitally created or adults passing as minors, engaged in obscene acts.

The material has to be judged obscene under the Miller Test, which considers both community standards and artistic merit, but those are notoriously moving targets.

Dwight Whorley of Richmond, Virginia is now two years into a 20-year sentence levied after his conviction on 74 counts of soliciting pornographic images of children, both real and imagined, in the form of Japanese anime.

He recently appealed, seeking to have the counts related to the comic art dropped, but last week he lost his case. And that could affect the case of Christopher Handley, a 38-year-old Iowa man accused of purchasing manga, Japanese comics drawn using very few lines, depicting underage sexual acts.

Charles Brownstein is executive director of the Comic Book Legal Defense Fund, now working with Handley’s defense. He says Handley’s just a collector caught in the act of – collecting.
CHARLES BROWNSTEIN:
Christopher Handley is a private collector of manga who ordered some untranslated Japanese comics, or manga, from Japan, which were intercepted by the post office in Chicago. There were seven pieces in that mailing, and when he received them at his post office in Iowa he was followed home, where his entire collection was seized.

They seized some 1200 comics and graphic novels, hundreds of DVDs, seven computers, but they're prosecuting for less than a dozen comic books. They pulled out everything but the kitchen sink but they only found a few dregs in the faucet.
BROOKE GLADSTONE:
Fictional beings under 18 that are engaged in sexual acts not deemed obscene aren't illegal. Can you tell us what the characters in Handley’s possession actually were doing?
CHARLES BROWNSTEIN:
I haven't looked at enough of the material to be able to give an expert opinion on it. What I can say is that the material in his collection is fantasy work. It’s fantasy within the horror genre; it’s fantasy within a genre called lolicon.
BROOKE GLADSTONE:
Lolicon is sexual material that is inspired by Nabokov’s Lolita.
CHARLES BROWNSTEIN:
Which is similar to barely legal stuff here in the United States. The hentai genre is a horror genre that depicts kind of supernatural beings engaged in sexual congress with human beings. And there’s a taboo against pubic hair in Japan, and so consequently if you’re depicting a character nude, you’re depicting them without the pubic hair.

So naturally this exaggerated cartoon figure that is already very simplified in its line detail, to the untrained, unknowledgeable eye is going to look like a person below age.
BROOKE GLADSTONE:
Do you hear from comic artists who are trying to figure out where the legal line is that they shouldn't cross? I mean, in your experience, have cases like Handley’s had a chilling effect?
CHARLES BROWNSTEIN:
A lot of artists are watching the Handley case very, very seriously. There’s established works within the graphic novel medium that are of unquestionable literary merit but that address juvenile and adolescent sexuality.

Books like Ariel Schrag’s Potential, which is a memoir that was drawn by an author when she was a teenager, about her sexual coming of age, is potentially vulnerable if Handley is convicted because that material depicts teenagers having sex.
BROOKE GLADSTONE:
But I assume that a work like that wouldn't be declared obscene under the law, which requires that the so-called Miller Test be applied to it. And the Miller Test has three parts: a) whether the average person applying community standards would find that work taken as a whole appeals to the prurient interest: b) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law and c) whether the work taken as a whole lacks serious literary, artistic, political or scientific value.

The jury must answer all three questions in the affirmative in order to convict. In the case of the work that you cite, it probably wouldn't meet the third test, at least.

CHARLES BROWNSTEIN:
That work could still potentially be the target of a prosecution, and that’s where the chill comes in. That’s where the chill comes in for artists. That’s where the chill comes in for retailers. That’s where the chill comes in for academics. Do I want to take the risk of selling this work? Do I want to take the risk of owning this work?
BROOKE GLADSTONE:
No one defends child pornography. You have a legal case to make here, but is there any part of the slippery slope argument that the courts will often make that you buy when it comes to child pornography and illustration?
CHARLES BROWNSTEIN:
Nobody, including the Comic Book Legal Defense Fund or Mr. Handley’s counsel are defending child pornography. Child pornography is photographic evidence of a crime, and the people that participate in that crime through the possession of images, the manufacture or distribution of images depicting real people getting hurt are what the PROTECT Act was created to prosecute. That is a crime that is unspeakable and that nobody should defend.

When you get into the realm of art and you get into the realm of prosecuting people for ideas and for images that are rendered as lines on paper, then you’re creating a category of thought crime, and that’s not what our free society is about.
BROOKE GLADSTONE:
All right, thanks very much.
CHARLES BROWNSTEIN:
My pleasure, thank you for having me.
BROOKE GLADSTONE:
Charles Brownstein is executive director of the Comic Book Legal Defense Fund. Now we turn to Mary Leary, former director of the National Center for the Prosecution of Child Abuse, currently associate professor of law at Catholic University. Welcome to the show.
MARY LEARY:
Thank you very much.
BROOKE GLADSTONE:
Okay, so the Supreme Court’s decision last May made it a crime to offer or solicit explicit images of children regardless of whether they are grownups dressed to look like kids or if they're depicted as line squiggles on the back of a matchbook, I guess. Am I right about that?
MARY LEARY:
I wouldn't say they made it a crime. I would say what they did was uphold the constitutionality of that particular crime. And I would add, as well, that what they simply did was reject the argument that was made that this was a vague statute or that it was an overbroad statute.
BROOKE GLADSTONE:
Why does this provision in the law exist? I mean, who is harmed by Mr. Handley’s possession of this material?
MARY LEARY:
It’s been accepted in some instances by the court, certainly by the United States Congress, that children outside the images are harmed by these pictures. And by that, I mean children who are exposed to these images, children who are sexually assaulted, because the research does support a correlation amongst hands-on sexual offenders and possessors of images of child sexual abuse.
BROOKE GLADSTONE:
The research there isn't conclusive, and obviously children will be hurt by pornographic images of any sort that fall into their hands, and also violent images, I would venture to say.

So why these imaginative depictions when it poses such a challenge to artistic expression?
MARY LEARY:
I would agree with you that there has not been the published study regarding a causal connection between the possession of child pornography or images of child sexual abuse and hands-on offending.

However, let's be realistic here. We will never be able to get the social science study that says, hey, looking at images of children being victimized in sexual abuse causes you to abuse children, because ethically we can never perform it. The demand that we have that study in order to conclude what most of the social science points to, I think, is an unrealistic one.

But to get to your question, who is harmed by these images? Again, we have to be clear what is in these images, okay? These are not gray-area materials. It has to be material that’s not only obscene, and you've already discussed the very high standard of the Miller Test in terms of finding something obscene, but also it has to involve a minor engaged in bestiality, sadistic or masochistic abuse, lascivious exhibition of genitals, sexual intercourse in all forms, as well as some other qualities as well. So this is not gray-area material.
BROOKE GLADSTONE:
Don't you see a distinction between images that are created with real people and the horrible consequences for the participants and so on with the ruminations of some Japanese anime artist who’s doing a horror comic book?
MARY LEARY:
As a matter of public policy, I do see a difference, and the difference I see is defining the social harm. And when we define the social harm in the situation where we have a drawing, where no human being is utilized, the social harm cannot be in the production.

Where I think we disagree is there’s still a social harm, I think, to that material if, indeed, it is obscene.
BROOKE GLADSTONE:
Thank you very much.

MARY LEARY:
Thank you very much.
BROOKE GLADSTONE:
Mary Leary is the former director of the National Center for the Prosecution of Child Abuse and currently associate professor of law at Catholic University.