The Comic Book Legal Defense Fund (CBLDF), the non-profit group dedicated to fighting for the comic book industry’s First Amendment rights has signed on to be a special consultant in a legal case involving  Japanese “virtual” child pornography. Christopher Handley (or “Chistopher” Handley as the CBLDF incorrectly refers to him in their press release) ordered some Japanese manga (comics) over the Internet from his home in Iowa.

His local post office was suspicious of the package and obtained a search warrant to inspect it’s contents. Inside they found seven books featuring illustrated images (not photographs) of children engaged in various sex acts with adults.  His post office then contacted law enforcement officials and Handley was arrested after taking possession of the box and returning with it to his home.

On October 17, 2007, a Grand Jury returned an indictment charging Handley with receipt of obscene visual representations of the sexual abuse of children and possession of obscene visual representations of the sexual abuse of children, both counts in violation of 18 U.S.C. § 1466A.  The same Grand Jury also returned an indictment charging Handley with mailing obscene matter in violation of 18 U.S.C. §§ 1461.

The indictment described the images with the following:

one or more drawings or cartoons, that depict a minor engaging in sexually explicit conduct, and is obscene, and 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 person of the same or opposite sex, which lacks serious literary, artistic, political, or scientific value.

A PDF copy of the 18-page response from the prosecution to a motion from the defense can be download here.

As any high school student should be able to you, the First Amendment does not protect obscenity.

In the 1973 Supreme Court decision Miller v. California, the high court established what constitutes obscene material. The so called “Miller Test” is as follows:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions[2] specifically defined by applicable state law.
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).

I find it hard to believe that images — created with a pencil or a camera — depicting children being brutally sodomized by adults wouldn’t meet the burden set forth in all three parts of the Miller test.

What I find the strangest thing about this is how most in the comic book blogosphere are reacting to it. People are actually arguing that illustrated child porn should not only be legal, but that banning it is an attack on Free Speech and the First Amendment. They will quickly point out that child porn created with a camera should be illegal because the creation of it requires the abuse of a real child. Illustrated child porn does not require an actual real child in the creation process, so it should be allowed allowed.

I just do not understand that line of thinking.