“It overrides Ashcroft v. Free Speech Coalition!” “It makes lolicon illegal!”
We have all read these claims on forums and art websites, often as a justification for banning loli, other times from people who don’t like that artwork and engage in confirmation bias. Often I have seen these claims in lawyer pages as well, which is disappointing as they should know better.
There was an article published by Prostasia where they summed up the legal status of lolicon in the US. And their conclusion was “It depends”, to which I agree. I just want to debunk some myths about the Act itself.
Myth 1:
“It overrides Ashcroft v Free Speech Coalition”.
No. That precedent still stands, and should SCOTUS review portions of the Act which don’t use the full Miller test, they will be struck down as unconstitutional. As it stands, one district court already ruled those two portions as unconstitutional when applied to fiction (the Handley case), and only another one upheld them as constitutional, which was a case involving real child pornography.
Myth 2:
“It bans lolicon in the USA”.
Again no. If anything, a good argument can be made that it legalized it, as child pornography law was amended to not apply to cartoons and drawings, and an affirmative defense was added which people can use to show an image was not produced with any real minors.
“But wait…” you say… “what about 18 U.S.C. 1466A? That makes loli illegal!”
Well, that’s where the “it depends” comes from. It depends on the state, on the community, and on whether it lacks serious value and is considered patently offensive.
“But people have been prosecuted and convicted!”
Yes, because their images were deemed obscene by a jury. THEIR images. Note that. Just because some images were obscene doesn’t mean all of them are. That’s for the fact-finder to determine, not some moral busybodies on forums who want to see things banned.
And the “it depends” status has existed ever since obscenity law has been around. 18 U.S.C. 1462 also applies to drawings, and writings as well, so long as they are obscene. That statute has been around for a while, before the Act of 2003.
And, what about all those loli images you can easily find on Google? Exactly… if it’s so illegal, they are doing a poor job at purging those images from the web. That’s because images not involving real minors cannot be taken down from circulation prior an adversarial hearing concerning the images and whether they are obscene under Miller. Only after that can the images be taken down. However, in reality, even after people are convicted, many of those images are still around.
Bottom line: there have been little to no changes on the legal status of fictional underage material, and after 2002 and 2003, things actually changed to make them less likely to be criminalized, with the affirmative defense of 2252A for indistinguishable material, and even though a new obscenity law was made, it is still an obscenity law.
Want to know about a country that really illegalizes loli? Look to no other place than Costa Rica. Their law has no exception for artistic merit, or anything similar to the Miller test. Even the law in the UK has some exceptions for images surrounded by non-pornographic contexts (see 3 to 5 in this link: https://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/2). But the Costa Rican law has none. It’s illegal period. Below is a link to the law. I can read it because I am a Spanish-English bilingual. Link (scroll all the way to the bottom to see the relevant part): http://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=76102&nValor3=94880&strTipM=TC
They call it “virtual pornography or pseudopornography.”
@terminus @Chie What do you think? Care to add or correct anything?