Is Lolicon illegal in the US?

Art and fiction
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There seems to be a lot of confusion around this.

Some say there was a law and that it was struck down as unconstitutional and that it’s fallen back to state obscenity laws, while Discord seems to think the federal law is still in force.

I’m not a lawyer, but the relevant bits:

Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

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The concise answer is that lolicon is legal if it is (a) not visually indistinguishable from a real minor (which means things like deep fakes and possibly very realistic 3DCG are questionable) and (b) is not obscene under state obscenity law. But “obscene” has a loose definition and that is where differences of opinion can come in.

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I have mixed feelings on that law.

Politicians would generally say that it would encourage people who otherwise wouldn’t have wanted to seek out CP to do so after getting a taste for this content.

However, I know of some sites which I won’t mention for obvious reasons (not least because I don’t want to get anyone here arrested), which have some fairly realistic 3DCG and the moderators largely allow it as they believe that it is beneficial as an alternative outlet.

Some claim that they were able to break away from CP addictions, precisely because of the content on those sites and that it would have been impossible otherwise.

It is however good to see that the situation is a bit better than I expected it to be there.

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I tend to agree (talking here about the law as it should be, not as it is) that there is no rational reason for distinguishing between 2D and 3D fake images. The only rational basis for the “visually indistinguishable” criterion, in my opinion, is that there might make it too difficult to obtain a conviction over real abuse images, if the defendant could just claim that they were actually computer-generated.

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I just wanted to jump in and add a bit to the discussion.
@blii
When it comes to §1466A specifically, there are two parts of the law you should be aware are explicitly unconstitutional, even if they have not yet been removed. 1466A(a)(2) and 1466A(b)(2) go beyonds the bounds of obscenity, and as such were the parts of the law deemed unconstitutional in United States v. Handley, as well as in several other cases. I believe the reason that the parts haven’t been removed is because we haven’t had a federal court knock them down yet, but I could be wrong.

And to add to the problem the definition of obscenity, there are at least some depictions which can relatively clearly be determined to be obscene. For example, from U.S. v. Koegel:

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@terminus
I wanted to ask about your statement of it being legal if it’s “not obscene under state obscenity law”
Whould this mean it’s impossible to be arrested (or at least tried) by federal agents for distributing obscenity to adults in Oregon, where their obscenity laws were deemed unconstitutional, even when there are federal restrictions on obscenity, as previously pointed out?

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It’s also because unconstitutional laws aren’t automatically stricken from the statute books, they just become dead letters. And any lower court ruling remains subject to being overruled by the Supreme Court.

If it’s distributed across state lines, then there is federal jurisdiction to try the case. There would not be federal jurisdiction to try someone for mere possession. At least this is my understanding.

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Mere possession is protected by Stanley v. Georgia anyway.

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By request, we have a new “Art and fiction” category. I’ve moved this topic there.

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Discord also takes it off their platform because other countires actually do gave it illegal. At least I think. If it really is because they are misunderstanding the federal law, should they be consulted about it?

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No, it’s not. Its legality is on the same level as any other pornographic medium - it’s legal unless determined to be obscene in a court of law - which limits it to a state by state, case by case setting.

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Seems to me that some portions of 1466a have already been ruled unconstitutional in US v. Handley, 1466A (a)(2) and 1466A (b)(2) as constitutionally infirm. Must be Obscene under the Miller standards or must involve REAL minors as in Ferber.

Regardless it does not seem to be strictly enforced at all unlike 2252 (which is meant to protect real and actual victims). To date, only a grand total of FIVE prosecutions under 1466a since the useless law’s inception. Now compared that with prosecution of REAL csem. On the federal level alone, there has between 1-2 thousand prosecutions for 2252 violations annually.

This law is so loosely enforced that I am not aware of any 1466a prosecutions in the last few years that involves 3d or 2d fiction. Since the laws inception, there have only been TWO prosecutions for art alone, the other three involved real minors (which again could had been prosecuted under 2252).

There was a time when Obscenity was once strictly enforced, however, even then, annual prosecutions never went above the hundreds level in the combinations of both federal and state level. And the days of strict Obscenity prosecutions are long gone, and they thankfully are never coming back. Accessing, Distribution, and Making CSEM has victims. CSEM victims have rights. Fictional characters in the form of a cartoon or a 3D model has no rights.

Obscenity still exists as a law on paper, but it’s essentially just that; aging letters and texts on a legal document which bare little relevance in today’s society. 1466A and other obscenity clauses (with the exception of sending obscenity to a minor) will one day go the way of other outdated laws that were once enforced vigorously, but are ignored today.

Considering the extreme subjectivity of what is legally obscene and not, I believe fictional CP is probably a legal grey area, much like a number of extreme pornography videos involving consensual adults. These things are not strictly enforced because the link between victim and these things are not well defined as is the case in 2252 violations.

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This is surprisingly small compared to Stop it now! UK’s boast that 10 thousand people get arrested per month over in the U.K. Do they actually enforce all of their laws there (including the cartoons)? It is hard to make those numbers add up otherwise.

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Not sure how true this is, but I heard vast majority of possession offenses are state level.
UK CSEM laws tend to lump in fiction with real ones so it’s hard to say how often drawings get included in the prosecution. This is different than the case of 2252 vs 1466A where 2252 only prosecutes if there are minors involved, 1466A can include real minors, but it can also include fake ones too.

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Please show me any actual underage persons who talk like your grandma. I’ll wait… Also, are we really not banning people making literal death threats?

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Death threats if credible can be a very serious felony. That person has been banned.

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Since this forum page has become our most popular by far, we just published an in-depth article on this topic on our website!

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I wasnt aware of that law in the US. Is that a federal law? Well if so its very difficult to say that it’s not illegal, especially if you take into account the part: “including drawing, cartoon, sculpture, or painting” … Like, One can’t get much more specific than that ^^"… But anyway, obviously the fact of being a law doesn’t automatically make it right. Making something fictional to be illegal is crazy talk, It’s literally the state criminalizing things that people have inside their minds. And its EVEN MORE CRAZY when you realise that there’s no scientific proof that those things are bad in any sense. That’s just irrational. It’s a shame that laws like this exist in many contries.

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All pornography is presumably legal unless proven otherwise.
Obscenity requires a scienter, usually a judge or jury, to determine whether or not it is or isn’t obscene, whereas anything involving an actual minor only needs to involve or depict an actual minor in its production.

The phrase “is obscene” is the part that counts. Obscenity laws and definitions differ between states and encompasses more than just anything pedophilic.
It’s not like that in all states, though, and some states either repealed their definitions or narrowed down their statutory definitions, limiting their scope to flagrant, public, or unsolicited exhibition of erotic material or to minors. Anything prosecuted on the state or federal level would need to satisfy that bar before being accepted.

The state of Oregon found obscenity to be protected under their state constitution, as a matter of fact, so lolicon is expressly legal there, but you’d need to see a lawyer about it.

In some states, homosexual pornography would be illegal, or anything involving BDSM. It’s a large, problematic area with a lot of double-speak that doesn’t conform to our Constitution.

I argue that the obscenity doctrine should be discarded, since any and all “legitimate goals” could be easily accomplished by “time and place” restrictions on pornography (which are likely to survive strict scrutiny), in addition to the “harmful to minors” doctrine which punishes sexual conduct or speech towards minors.

To put it simply, it is antithetical to our First Amendment. Community standards have no place telling consenting adults what material they can, or can’t buy, receive, or even privately possess, regardless of whether or not it was transported via interstate commerce. What the obscenity doctrine essentially does, is it fractures our First Amendment into a series of vague, uncertain, and unjustified questions contingent on nothing more than who the members of the court are. They have no business being in the courts. It is quite literally thoughtcrime.
Regardless of what the material depicts, no matter how grotesque, shocking, or offensive it may be to the majority, so long as there is no real, underlying crime, it is no different than any other sexually explicit or enticing material, as far as the First Amendment is concerned.

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Adding onto this.

To be clear, lolicon (loli) pornography is LEGAL in the United States unless proven to be obscene in a court of law or depicts an actual minor. This is also the case with adult pornography.
Ashcroft v. Free Speech Coalition (2002), reaffirmed in US v. Williams (2008), held that purely virtual/fictional child pornography was on the same level of legality as normal adult pornography.

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