Experience in this area led Stanley to write articles on the subject of child pornography, notably “The Hysteria Over Child Pornography and Paedophilia”, later published in Playboy as “The Child Pornography Myth”.
Regarding kids, there can’t be other opinion (I’ll try to explain why in a one of the next posts) – “do not touch them!”. But the biggest problem is the definition of the term “child porno”. What is considered “children pornography”?
Part I explains some of the major legal points. But what if it’s manga we are talking about? Common sense tells us that drawings are by no means related to child porno. Because … Hm… the depicted subjects simply do not exist! However, some legal authorities think otherwise…
Down the Slippery Slope – The Crime of Viewing Manga
© 2009 Lawrence A. Stanley
On March 30, 2004, when Dwight Whorley found the Japanese website of Fractal Underground Studio via Yahoo and clicked on a couple of the thumbnail images, he thought he had found what he was looking for: images that weren’t child pornography by the legal definition, but which nonetheless expressed the ideas he wanted to see illustrated: sex between adults and minors. They were cartoon figures, inked in a clumsy style. There was nothing real, and no one was hurt. No one could mistake them for anything other than the cartoons that they were.
Unfortunately for Whorley, he wasn’t at home, but in the public resource room at the Virginia Employment Commission, where he was supposed to be looking for a job. A woman saw what he was looking at and informed a supervisor that he was viewing child pornography. Believing the material to be legal, Whorley showed it to the supervisor and was promptly escorted to the door. He didn’t even have time to close his e-mail account.
Shortly thereafter, law enforcement officials seized twenty emails (containing only words, no images) detailing fantasies of sex with minors. Only one email was sent by Whorley; the rest he received from a third party. Investigators also discovered that he viewed online 15 images of naked children from an Illinois website called “Logical Reality.” As if all this weren’t enough already, Whorley was still under post-conviction supervision for the crime of downloading child pornography in 1999, a crime for which he served three years and four months in jail. It could easily be predicted that he would be shown no mercy.
For the act of “receiving” the cartoons, or more specifically, for printing out three of them at the public resource room and purportedly viewing the rest online – the images were in the computer’s cache memory and no one could say for sure whether Whorley saw them for five minutes or one second or not at all – Whorley was charged under two statutes: 18 U.S.C. Section 1462, an obscenity statute harking back to 1873, and 18 U.S.C. Section 1466A, a provision passed by Congress in 2003.
The prohibitions under Section 1462 – which makes it a crime to use an “interactive computer service” to “take or receive” any “obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character” – were enough to convict Whorley, but under that section there is no minimum jail term. So, in addition, the government charged him under Section 1466A, “Obscene visual representations of the sexual abuse of children.” Section 1466A imposes precisely the same penalties that apply to images of hard-core child pornography showing real children.
Paragraph (a)(1) of section 1466A criminalizes the production, distribution, receipt and possession with intent to distribute of any obscene visual depiction, including a drawing, cartoon, sculpture, or painting, which “depicts a minor engaging in sexually explicit conduct.” Section (b)(1) purports to criminalize the private possession of such representations. “Minor” means any person under the age of eighteen and “sexually explicit conduct” is defined as in the child pornography statute: “actual or simulated” acts of sexual intercourse, oral and anal sex, bestiality, masturbation, “sadistic or masochistic abuse,” or “lascivious exhibition of the genitals or pubic area of any person.”
Despite the application of both child pornography definitions and sentencing standards to Section 1466A, obscenity is not the same thing as child pornography. An item is child pornography only when it depicts an actual minor engaged in sexually explicit conduct, regardless of the conditions under it is made, the quality or character of its portrayal or the mores of the community in which it is found. (For this reason “virtual child pornography” is not child pornography at all under the law. It is an oxymoron.) By contrast, an item is obscene when a jury finds it so after applying the three-pronged test devised in 1973 by the Supreme Court in the case of Miller v. California. To be clear, “obscenity” is not synonymous with pornography, but a tiny sub-category of it, which, in one jurisdiction or another, is found by a jury (or a judge acting in a jury’s stead) to be illegal. Nothing, not even pornography, is presumptively “obscene.” It must be judged so in a court of law. Here is how the U.S. Department of Justice describes that tri-partite obscenity test in Miller in its “Citizens’ Guide to Federal Obscenity Laws”:
– Whether the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and
-Whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
– Whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
It was in the hopes of avoiding the effort and expense of going through this test that Congress included two additional provisions in Section 1466A: paragraphs (a)(2) and (b)(2). These criminalize production, distribution, receipt, possession with intent to distribute, and private possession, but eliminate the first two prongs of the Miller test. These two provisions were not applied to Whorley. The government left them for another day.
On March 6, 2006, a jury found Whorley guilty for “receiving” obscene cartoons. It also found him guilty for receiving child pornography (the photos of naked minors) and obscene emails. However, for the cartoons alone he was sentenced to 20 years in prison, with a 10-year period of probation thereafter, a sentence which was upheld on appeal last December by the 4th Circuit Court of Appeals. Had he not been previously convicted of receiving child pornography, his sentence would probably have been much lower, but under 1466A the sentence for the first-time receipt of even a single image is, in any event, “not less than 5 years and not more than 20 years.”
Given all the qualifying facts in the Whorley case, one might ask, why should anyone care? Setting aside questions of fundamental justice for the moment, the answer is: because cartoons and drawings aren’t child pornography and should not be treated as such under the law. The moral slippage in the law is palpable in the way it conflates images of actual minors with fictional representations: it refers to “depictions of minors,” and, by reference to the other provisions in the law, defines acts engaged in by “persons,” but how is a cartoon character a person? It talks about engaging in sexually explicit acts, but how does a cartoon character engage in anything? It defines “actual or simulated” conduct, but how can a cartoon character’s conduct be “actual”? Ultimately the law denies the reality that these are not “depictions of minors” at all but pure fantasy. One should care about this case because United States v. Whorley was a testing of the waters. With Whorley behind bars, some people in the government believe they have a mandate.
Christopher Handley’s circumstances were vastly different from Dwight Whorley’s when law enforcement officers followed him home from the Post Office on May 23, 2006. He had just picked up a package from Japan containing manga. A thorough search of his home turned up only more of it: some 1200 magazines, hundreds of DVDs, laser discs and videotapes, and an untold number of images on computer, but no child pornography or even images of nude minors. Handley was a collector of manga, not lolicon, and the vast majority of the manga and images he possessed contained no fantasy representations of minors at all. The fact that a small amount of it represented fictional pre-pubescents and fantasy portrayals of sadomasochistic or violent sex, however, meant that Handley faced a sentence ranging from a minimum of 7 years and 3 months in prison to a maximum of 9 years.
What does a small amount mean? By the government’s count, he received or possessed more than 150 but less than 300 such images in total. Not 150 to 300 magazines, but cartoon pages with one or more panels or individual jpgs. (The precise calculation of his sentence is outside the scope of this article, but each factor of the offense – the number of images, whether an image can be considered to represent a prepubescent, whether sadomasochistic conduct or bestiality are portrayed – is quantified in the United States Sentencing Guidelines.)
At first, things looked good for Handley. He was charged under Section 1466A both for receipt and possession of manga, but it took the government almost a year to hand down an indictment. When it did, he was released on his own recognizance shortly thereafter. The conditions of release were typically onerous, but not impossible. Among them was the requirement to turn over the contents of his computer to the government; to agree to have periodic unannounced searches of his computer “for child pornography” and unscheduled visits from government officers; to undergo periodic drug testing; to restrict his movements to the State of Iowa and two counties in Nebraska; and to “seal and not access the printed and computer media materials released to him by the government of a sexual nature.” (Presumably this was a large quantity of material that the government decided it didn’t want to keep once the case was over, but didn’t want him looking at while the case was pending.)
Then the government went to work on him. In July his Pre-Trial Officer tried to send him back to jail, claiming that he had “ongoing access to material that represents the sexual abuse of children.” The officer’s report demonstrates just how expansive (and possibly clueless) a view some people in the government take of the statute in question. It reads as follows:
He is regularly visiting sites that contain Anamie [sic] art.
A DVD advertisement – GaoGiaGar: King of Braves – with the quote, “Unlike Godanner, GaoGiaGar isn’t aimed at those fans that have grown up and developed a taste for extreme fan-service and romantic drama; its aimed at the fans that never grew up at all. Don’t hide it you know who you are…. [The government thinks these are code words for pedophilia.]
In addition were DVD titles of:
All Sex Hentai, Angel Core, Sexy Freedom Fighters, Girls Locker Room Lust, Forbidden Love, Moral Hazard, Natural Obsession, Perverted Thomas, University Girls “Special Counseling.”
As a result of the report, the district court prohibited Handley “from viewing or accessing anime on the Internet,” from “ordering anime video and written material,” or from “engag[ing] in Internet chat.” The latter condition would have the effect of preventing Handley from informing others about his case and preparing his defense, but pre-trial detention would have been even worse. Finally, Handley was ordered to “participate in mental health counseling with a licensed mental health therapist of his choice” and to authorize the therapist to inform on him if s/he determines that Handley “is a danger to himself or others.”
Things got even worse a year later when Handley’s lawyers filed their Motion to Dismiss. Contrary to 35 years of jurisprudence and with the kind of logic that defines torture not to include waterboarding, Judge James E. Gritzner, a legacy of George W. Bush, ruled that the government could proceed under the possession charges. This may sound like a harsh characterization of Judge Gritzner’s decision, but it really did come down to one simple sentence of doublespeak:
Thus, while an individual has a limited right to possess obscene materials in the privacy of his own home, there exists no right to … possess obscene materials that have been moved in interstate commerce….”
In comparison are the unambiguous words of the Supreme Court from the 1969 case, Stanley v. Georgia:
But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. [Emphasis added.]
There is also the United States Department of Justice’s own public statement regarding possession from its “Citizens’ Guide” quoted above:
While the mere possession of child pornography is a crime, private possession of obscenity is not…
The DOJ site contains no weasel words and no exceptions for possession of materials that were shipped, or which used paper and ink that were shipped, in interstate commerce. This clear declaration certainly raises the question of the government’s good faith in charging Handley for possession in the first place.
Perhaps to his credit, Judge Gritzner did strike down as unconstitutional the two paragraphs of Section 1466A which tried to sidestep the Miller test, but that determination made absolutely no difference to Handley, as the government had hedged its bets by not specifying which provisions it was proceeding under. In the final analysis, only striking down the possession prohibition would have possibly benefited Handley, and then probably by only a few months. It should come as no surprise to learn that Handley has negotiated (but, as of this writing, not yet entere) a guilty plea in the hopes of receiving a lower sentence.
How far will the government go? How about the somber work of Hiraku Machida, or Suehiro Maruo’s DDT or Rose Colored Monster, or Liberatore’s Ranxerox? What about the art of Trevor Brown, or any of the publications or websites mentioned by Christopher Handley’s probation officer? What about Kaworu Watashiya’s Kodomo no Jikan? Once you begin to attack pure fantasy, where do you stop? Under current legal interpretation, a drawing of Rin’s fictional panties covering her non-existent genitalia constitutes a prohibited sexual act. Would a jury, applying local community mores, be convinced that these materials possess serious artistic value? In Texas v. Castillo, a state case from 2000 tried under Texas law, two defense experts – one of them a professor at the University of Texas who was also an authority on Asian literature – were unable to convince the jury that Demon Beast Invasion: The Fallen was not obscene. What are the chances that a jury will credit an expert’s testimony regarding manga containing representations of minors?
The government, of course, says “trust us,” but history teaches precisely the opposite. Since 1984, the category of material which could and would be prosecuted has been in a constant state of expansion by act of Congress and court decision alike. At first the law forbade only the commercial handling of obscene images depicting minors under sixteen. In 1984 the upper age limit was increased to eighteen and the crime of simple receipt was added. Later, Congress included the crime of possession of three or more items, then just a single item. Rather than defining “lascivious exhibitions of the genitals” by the model’s pose, the courts interpreted the phrase broadly, basing the determination on factors outside of the image itself, such as whether it was published with a lewd caption or created with lewd intentions in mind. With United States v. Knox the meaning of the phrase expanded to include “exhibitions” of the pubic area or genitals which were fully covered by clothing and/or zooming in on that body part from afar, even without the knowledge of the person depicted. Simulated sexual acts were also defined and prohibited. Advertisements became illegal, as did, briefly, any image that “appeared to be” a minor. Then Section 1466A came along, and with it all the criteria and penalties associated with child pornography were applied to completely fictional representations. Naturally the penalties increased with each amendment. Soon, if the so-called “Safety Act,” currently pending before Congress, is passed, the sentence for receiving even a single prohibited cartoon in violation of Section 1466A will jump from “not less than 5 years and not more than 20 years” to “15 years or for life.”  Life. For cartoons.
Artists probably have the most to fear. Under United States v. Schales, a decision issued last October by the Ninth Circuit Court of Appeals, the very act of drawing may be deemed criminal under Section 1466A.  In that case the defendant was charged and convicted for “producing” obscenity by using software to edit and paste together parts of pre-existing pornography with legal photos he took of local girls to make it appear as if the girls were engaging in sexually explicit conduct. (He did not disseminate these images, but kept them for his private viewing.) There is no logical reason why one rule would apply to collages and another to drawings and paintings. Following this decision, what artist is willing to risk an assessment of the worth of his or her work by the harshest critic of all, the criminal law?
It is often said that “bad cases make bad law,” but here the bad law is being made by legislators and judges alike who climb over each other in an effort to prove their moral uprightness and supposed concern with protecting children. It is quite possible that at least some of the more obvious excesses – the prosecution of private possession of obscenity; the definition of “production” to include the creation of collages, the definition of “receiving” to include viewing online however briefly (or not at all) and the recent criminalization of “accessing” with intent to view – will eventually be ruled unconstitutional. Likewise, there are solid legal arguments why the interpretation of Section 1466A as applying to completely fictional representations is untenable and contradictory given both the language of the statute and statements of intent by those in Congress who drafted it. But in the broader view, Section 1466A is about thought control. Both the law and its penalties are premised solely on the idea that fictional representations “whet the appetites” of sex offenders or seduce children into sex. When the Supreme Court rejected that rationale for prohibiting fictional representations under the rubric of “child pornography” but held that such images could, nonetheless, be prohibited if they were “obscene,” it did not indicate that anything goes. Rather, the Court announced this crucial principle:
The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” … First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.
Speech includes not just the written word, but also painting, drawing, collage, film, video and sculpture. Private authorship and possession of obscene books are no different from private authorship or possession of obscene works of art. Prohibiting either strikes at the very heart of freedom of thought, but then so does prohibiting an individual’s right to buy, purchase, download or otherwise receive “obscenity” for his or her private consumption. Don’t think that this argument is a defense of child pornography. It isn’t. The subject here is fiction and fantasy. No children are abused in the production of these images.
In its 1973 decision in United States v. Orito, the Supreme Court ruled that the right of an individual to private possession of obscene material did not mean that the producer or seller could lawfully send it to him or her through the mail. “Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material,” Chief Justice Burger wrote, “based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause.” A lot has happened since 1973, including an explosive growth in the selection and availability of sexually explicit material, a revolution in communications and an evolution in our understanding of the zone of privacy. (In 2003, the Supreme Court ruled unconstitutional a Texas sodomy law, holding that a state may not enforce the moral views of the majority “on the whole society through operation of the criminal law.”) Several times in the past ten years the courts has struck down laws aimed at restricting on-line content on the basis that it might be seen by juveniles or unwilling adults. One of these days, the Supreme Court will have to face this larger issue of whether the obscenity laws can honestly still be justified.
In the meantime, organizations like the Comic Book Legal Defense Fund, which would have provided expert witnesses at its own expense had the Handley case gone to trial, should be supported through donations and membership. News sites and blogs should loudly criticize government interference with the rights of its citizens to purchase, read and possess the publications they wish. Petitions should be sent to members of Congress objecting to the censorship of art under the guise of protecting children. Moral crusading against comic books and art must be forced into retreat.
 United States v. Dwight Edwin Whorley, United States District Court for the Fourth Circuit, Case No. 06-4288, Decision by Judge Niemeyer, December 18, 2008, p. 5. http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf
 Id., pp. 3-4.
 Id., pp. 4-5.
 Id. p. 21. The decision notes that Whorley was initially arrested in December 2008 and released In April 2002.
 Brief of the Appellant to the United States Court of Appeals for the Fourth Circuit, United States v. Whorley, p. 77 (hereinafter Brief of the Appellant.) (The interior references are to the trial record.)
FBI Agent James M. Fottrell , a forensics expert, testified that the computer Whorley used “only logged one entry for each of those images [i.e., the 20 cartoons]. He also stated that he was ‘confused’ about different windows being open at the same time on the computer, and that the data gets ‘mishmashed’ because of email activity and browsing activity going on at the same time. J.A. 581, 606. He conceded that ‘an image could be downloaded onto the hard drive in the internet cache hard drive, and the person sitting there looking at the screen may never see the image,” or may just see a portion of the image or the contents page. J.A. 592, 609, 620, 626. He also conceded that the index.dat file does not indicate what is appearing on the screen, only the timing and sequence of what is going on with the hard drive and the Internet Explorer Program. J.A. 597, 606.
“Agent Fottrell then testified about the timing of the charged images coming into the internet cache of the hard drive and the timing of all of the hundreds of uncharged images that were logged into the hard drive at and around the same time. J.A. 598-632. He confirmed that for almost all charged images, many uncharged images were logged in within seconds of the charged images, and many uncharged images in the same second as the uncharged images. J.A. 599, 600, 602, 604, 608, 610-12, 614-32. Brief of the Appellant, United States v. Whorley, pp. 21-22.
 The statute, known as The Protect Act of 2003 (“Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”), was introduced in January 2003 and signed into law on April 30th of that year. For legislative history, see http://thomas.loc.gov/cgi-bin/query/z?c108:S.151: and http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.00151: (The colon is part of the urls.)
 18 U.S.C. 1462 specifies a prison sentence of “not more than five years” for a first offense and “not more than tem years…for each offense thereafter.” See http://www.law.cornell.edu/uscode/18/1462.html
 The penalties under 18 U.S.C. Section 1466ª are controlled by 18 U.S.C. 2252A(b), the child pornography statute. See http://www.law.cornell.edu/uscode/search/display.html?terms=1466A&url=/uscode/html/uscode18/usc_sec_18_00001466—A000-.html
 The distinction was first made in New York v. Ferber, 458 U.S. 747 (Supreme Court of the United States, 1982), see http://www.law.cornell.edu/supct/html/historics/USSC_CR_0458_0747_ZO.html.
 Miller v. California, 413 U.S. 15 (Supreme Court of the United States, 1973). See http://www.law.cornell.edu/supct/html/historics/USSC_CR_0413_0015_ZS.html
 No Senator or Congressman actually stated this as a reason for the provision, but the attempt to create a slightly narrower category of images of fictional minors with respect to which the Miller test could be dispensed was obviously aimed at easing any prosecutorial burden while reducing the defendant’s chances for a successful defense.
 According to Whorley’s federal public defender, Robert J. Wagner, “The nude images in the case, which were thumbnails scattered among written text, were simply nude children in non-lascivious poses, sitting on the kitchen counter, standing in the woods, standing on the beach. It was simply the context of everything else in the case that caused the jury to find him guilty on those counts. These were the kind of pictures that you might find in a family album.” (Email communication March 18, 2009; see also Brief of the Appellant, United States v. Whorley, p. 80.) This characterization is strongly supported by circumstantial evidence. The FBI’s expert testified that he visited the Logical Reality site to confirm the existence of the images seven or eight months after Whorley was arrested:
[Agent Fottrell] compared the pages appearing on the web-site during the October-November 2004 time frame with the files in the VEC computer’s temporary Internet file directory [on the day of Whorley’s arrest, March 30, 2004], and found them to be the same. JA 535. He also stated that the text on the web-site indicated that it was last updated in 2003. JA 535
Brief of the Appellant, United States v. Whorley, p 19. Furthermore, Logical Reality was still online at least as late as December 2006. A Google search turns up comments by people outraged about the site at various times in January 2006 (http://friends.portalofevil.com/sfs.php?fi=000033803), March 2006 (http://www.freeratio.org//showthread.php?t=158066&page=10) and December 2006 (http://forums.jolt.co.uk/archive/index.php/t-491098.html).
It is not merely unlikely, but impossible, that an openly-accessible website containing child pornography would remain online from 2003 until at least 2006.
 United States v. Whorley, No. 06-4288 (4th Circuit Court of Appeals, December 18, 2008). http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf.
 See 18 U.S.C. Section 2252A “Certain activities relating to material constituting or containing child pornography” Paragraph (b)(1) specifies the sentence for 1466A(a) (production, distribution, receipt and possession with intent to distribute), while paragraph (b)(2) which specifies the sentence for 1466A(b) (simple possession). http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00002252—A000-.html
 18 U.S.C. 1466A(f)(2) states that “the term ‘sexually explicit conduct’ has the meaning given the term in [18 U.S.C.] section 2256(2)(A) or 2256(2)(B). Both those sections refer to sexual conduct by or between persons. In addition, 2256(1) defines “minor” as “any person under the age of eighteen years.” (Emphasis added.) See http://www4.law.cornell.edu/uscode/uscode18/usc_sec_18_00002256—-000-.html
 See the website of the Comic Book Legal Defense Fund, http://www.cbldf.org/pr/archives/000372.shtml; Superceding Indictment, United States v. Christopher S. Handley, Crim. No. 07-CR-030, United States District Court, Southern District of Iowa, Western Division, October 17, 2007; and Order of District Judge James E. Gritzner, July 2, 2008, http://www.iasd.uscourts.gov/iasd/opinions.nsf/55fa4cbb8063b06c862568620076059d/20a96a77c04347ed86257480006ae8c5/$FILE/Handley.pdf
There is no mention in any court document throughout the case of either child pornography or images of nude minors in the defendant’s possession. It would have been noted and/or charged had there been.
 In calculating the applicable sentencing range, Handley’s lawyer noted the sentencing enhancement under the United States Sentencing Guidelines Section 2G2.2(b)(7)(B) for the presence of “at least 150 images, but fewer than 300 images.” That number would have been provided to him by the government. See, Defendant’s Motion in Limine, United States v. Handley, p. 6. Sections 2G2.2(b)(7)(C) and (D) provide further enhancements, respectively, for “at least 300 images, but fewer than 600″ and “600 or more images.” The guidelines are less than precise as to how the government counts images in magazines, but one may draw an inference that one page equals one image:
(B) Determining the Number of Images.-For purposes of determining the number of images under subsection (b)(7):
(i) Each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image. If the number of images substantially underrepresents the number of minors depicted, an upward departure may be warranted.
(ii) Each video, video-clip, movie, or similar recording shall be considered to have 75 images. If the length of the recording is substantially more than 5 minutes, an upward departure may be warranted.
See “2008 Federal Sentencing Guidelines Manual, Chapter 2 – Part G – Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, and Obscenity,” available at http://www.ussc.gov/2008guid/2g2_2.htm.
The low number of images in Whorley’s case rules out the probability of being charged in connection with Comic LO, as a single issue of that magazine contains more than 300 pages, each which contain numerous chargeable cartoon panels. An email exchange with the Comic Book Legal Defense Fund (CBLDF) also suggests that there are no English words on the cover of the magazines in question: “The titles of the manga in question in Handley is not secret, but they are not known either. The material in question is untranslated Japanese manga, likely doujinshi… The titles have not been identified, and the alleged nature of the material makes wide dissemination to identify titles risky.” Email dated April 7, 2009 from Charles Brownstein, Executive Director of CBLDF to the author.
 Handley was also charged with mailing an obscene book of cartoons which, according to the indictment, “depicted graphic bestiality, including sexual intercourse, between human beings and animals such as pigs, monkeys and others.” United States v. Handley, Superceding Indictment, Count 5. As noted above, there is no minimum sentence on this charge.
 United States v. Handley, Order Setting Conditions of Release, May 18, 2007, Document no. 8 on the case docket sheet.
 United States v. Handley, Motion to Modify Conditions of Release, filed undated, but indicated on the docket sheet as document no. 21, filed 7/18/07. Attached is the “Report of Bond Violation – Information Only” by United States Probation Office, dated July 9, 2007.
United States v. Handley, Order of Ross A. Walters, United States Magistrate Judge, August 1, 2007. Document no. 26 on the docket sheet.
 United States v. Handley, United States District Court, Southern District of Iowa, No. 07-CR-0030 (JEG), Order, p. 5. See footnote 17 above for online availability.
 Stanley v. Georgia, 394 U.S. 557, 565 (1969), available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=394&invol=557
 Id., pp. 10-15.
 American publisher Seven Seas cancelled the publication of Kodomo no Jikan (under the title Nymphet) ” one day after its official release date of May 29, 2007. (The official release is pictured at http://www.amazon.com/Nymphet-Kaworu-Watashiya/dp/1933164476.) See, “Seven Seas Cancels Nymphet (Kodomo no Jikan)”, ComiPress, May 30, 2007, http://comipress.com/news/2007/05/30/2031, and “Seven Seas Kills ‘Nymphet'”, May 30, 2007, ICV2.com, http://www.icv2.com/articles/home/10663.html. Kodomo no Jikan was popular enough in Japan that it was turned into a anime TV series. It is not considered even remotely pornographic by Japanese standards. See “Nymphet Controversy: Seven Seas’ Response,” by Jason DeAngelis, http://www.gomanga.com/forum/viewtopic.php?t=5291 and “Jason DeAngelis of Seven Seas on ‘Nymphet’,” May 30, 2007, ICV2.com, http://www.icv2.com/articles/home/10662.html.
 The first law was enacted in 1978 by Public Law 95-225, Sec. 2(a), Feb. 6, 1978, 92 Stat. 7.
 These changes were effected by amendments in 1984, 1986, 1988, 1990, 1994, 1996, 1998, 2003, 2006 and 2008. For an complete list of the changes up until 2006, see http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002252—-000-notes.html. For the 2008 amendments (which defined a new crime of “knowingly access with intent to view,” see http://www.govtrack.us/congress/bill.xpd?bill=h110-4120 and http://www.govtrack.us/congress/billtext.xpd?bill=h110-4120.
 United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand , 812 F.2d 1239 (9th Cir.), cert. denied , 484 U.S. 856 , 108 S. Ct. 164 (1987). The “Dost factors” for determining a “lascivious exhibition of the genitals” are cited in footnote 10 of United States v. Knox, 32 F.3d 733 (3rd Circuit, 1994), http://bulk.resource.org/courts.gov/c/F3/32/32.F3d.733.92-7089.html#fn10.
 United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1986), cert. denied, 484 U.S. 856 (1987), http://bulk.resource.org/courts.gov/c/F2/812/812.F2d.1239.86-5213.html, and United States v. Cross, 928 F.2d 1030 (11th Circuit 1991), http://bulk.resource.org/courts.gov/c/F2/928/928.F2d.1030.86-3344.html.
 Ibid., note 29.
 That language was ruled unconstitutional as applied to child pornography (but not obscenity) by the Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), http://www.law.cornell.edu/supct/pdf/00-795P.ZO.
 See H.R. 1076, http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1076:, and S. 436, http://thomas.loc.gov/cgi-bin/query/z?c111:S.436:.
 Ibid., note 34. Opinion of Justice Kennedy, p. 15.
 See “Communications Decency Act,” Legal Challenges, http://en.wikipedia.org/wiki/Communications_Decency_Act.
Here’s what Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund (CBLDF) has to say about the titles: “The titles of the manga in question in Handley is not secret, but they are not known either. The material in question is untranslated Japanese manga, likely doujinshi, [furnished by the government] as a series of photocopies. The titles have not been identified…”
If Handley had received or possessed copies of Comic LO, there would be no doubt as to the title, since the title is written in English.
Moreover, each issue of Comic LO contains well over 300 images that would violate 18 U.S.C. 1466A. But as the article, “Viewing Manga As A Crime,” points out, “[b]y the government’s count, [Handley ] received or possessed more than 150 but [fewer] than 300 such images in total.” Remember that he was charged for receiving AND possessing a variety of titles. Thus it is almost impossible that Comic LO was among them.
Given the ubiquity of prosecutable “schoolgirl” images in manga (including prosecutable images showing some variety of bdsm, which provides for a sentencing enhancement), the issues raised by the Handley prosecution are serious indeed.
About the Author
Lawrence A. Stanley has a B.A. in Philosophy from George Washington University and a Juris Doctor from Cardozo School of Law. He has authored or co-authored appeal briefs in U.S. v. Knox and U.S. v. Various Articles of Merchandise, Schedule No. 287, among other cases, and amicus briefs to the U.S. Supreme Court in Massachusetts v. Oakes and Maryland v. Craig. His articles have been published in Playboy, the Washington Post, The Gauntlet and other print publications. In 1989, he was the recipient of the Free Press Association’s H.L. Mencken Award for Investigative Journalism for his Playboy series, The Child Porn Myth. He currently practices in the area of trademark and copyright law.