U.S.-- Obscenity Laws dealing with Anime (and manga)

[Archon_Wing]

So a while back, we had a discussion if someone could get into trouble for a To Love Ru artbook. As To Love Ru artbooks have rather tame artwork, mostly cheesecake stuff, this seemed to be a fairly innocuous concern, even though it does have frequent fanservice of a very underage character; Darkness would really straddle (literally and figuratively speaking) the borders.

Anyhow, we were dealing with Canadian law in that thread, and I was mainly like lol "Over here we'd never do something dumb like attribute real age to fictional characters" though a bit of research has yielded some disturbing results.

Ironically, most hentai is better off, because a lot of hentai and adult VNs tell you their characters are of legal age, regardless of what it seems like it, thus getting the people too old to be in high school trope. (well, technically it's possible). It's actually heavy ecchi anime and its associated doujins (fanmade) that would cause problems.

Now, it's been actually been ruled unconstitutional to apply Child Pornography laws to 2d as shown in the Christopher Handley case But they still got him for "obscenity" anyways.

So what the hell is obscenity? Basically, like any number of broad terms used by the government such as "civil forfeiture" it's basically a government blank check to fuck you over regardless of wrongdoing. Then again, this is the same country that only respects your rights when it's convenient.

https://en.wikipedia.org/wiki/United...n_of_obscenity

whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest

Basically, if the average person doesn't like it, you're probably fucked. Considering what a lot of non-anime viewers try to generalize the medium as, the more sketchy parts are not going to stand a chance. The average person isn't exactly culturally sensitive, and that just seems like a recipe for disaster.

Would a certain scene in the middle of Yosuga no Sora survive such a test? I really have my doubts.

And then Wikipedia finally leads to this rather disturbing case:
http://www.justice.gov/usao-wdmo/pr/...e-childhood-24

Apparently someone was reported to have so called "incest comics", and was arrested for them because the images '“clearly lack any literary, artistic, political or scientific value.”'

In Christopher Handley's case, at least he was trying to import stuff, in many other cases involving this kind of material the people actually had actual child porn. But what about this? Are we really arresting people if they get ratted out for having inappropriate drawn pictures? It does seem like a rather disturbing set of precedents, and even if it were possible to fight these things, it would not seem that local media would be very favorable either, so public opinion wouldn't really help spark any kind of outrage.

It just seems rather disturbing that the laws around here are heading that way. Or the fact that alleged laws used to "protect children" were actually used to "punish children"

Edit: This has nothing to do with what some of you been sending me lately. I love you all, even if you decide to ruin my day with Boku no Pico.

[relentlessflame]

As you suggest, I think this whole issue rests in a sort of uncomfortable quagmire because those on "this side" of the issue don't believe in the "reasonableness" of the average person, and the standards governing these cases (at least per U.S. law) are about "standards of the community". It's interesting to note that the Handley case didn't go to trial not because the lawyer didn't believe he had reasonable arguments, but because it ultimately came down to whether the jury would consider the art "prurient", and assuming none of them had ever been seriously exposed to anime/manga/comics, they probably expected an over-reaction.

If it were up to me personally, I'd definitely argue the "serious artistic/literary merit" of the Yosuga no Sora anime despite some of its content, because you have to consider the work on the whole (as the quote says). The explicit content and the way it's portrayed very much serves the story; I don't think you can divorce those scenes from the context in that case. (I would also point, as evidence, the amount of actual serious discussion we had on this very site about the show.) But I suppose it's easy for me to say that I'd argue it when the noose isn't around my neck. Given the choice of having to go to trial and having your life basically ruined through a media spectacle (as you say, likely to be less-than-sympathetic), I think most anyone would try to find the quiet way out. As noted above, that's why many of the cases result in guilty pleas -- take the deal you can get rather than risk it going to trial and ending up with a worse outcome.

Even though I think I could argue the artistic merit of an anime like Yosuga no Sora (or its original eroge for that matter), stray/isolated "porn" images like those in the one case you linked to are a bit harder to argue because there's no additional context. You'd just have to judge the artistic merit of the images themselves, and that argument gets pretty circular; if there's a question of whether a work of art can have or lack "serious artistic value", then what does it even mean? It's not "serious art" because...? I suppose it probably falls under the stereotype that porn itself can't be "serious art" simply because it's porn ("appeals to the prurient interest"), and therefore the question was settled before it was asked. It basically means whatever the judge/jury want it to mean, or -- as that definition points out -- "I know it when I see it."

Anyway, these are troubling precedents without any easy answers.

[Archon_Wing]

Thanks for your input! These recent events have certainly caused me a little worry, since I usually think we are going ahead, but it almost seemed like it's been getting a bit more draconian. I almost have to say "What, but Bush is out of office already!" Leaving these matters to the "average person" just seems scary at times. I mean I can think of all the things I find that should be gross and banned, but subjective opinion is a dangerous thing. Hell, the judges tell me that all the time that the law is more important than personal opinion-- and many I've seen do feel incredibly passionate and strong about that. In any case, I just think one person being hauled away when they weren't aiming to cause harm to others is just one too much. I... just have a strong sense of justice in these regards. Probably watched too much shounen or something. =p But I do go strongly by ideas like this when it comes to freedom of expression regardless of what I agree or disagree with.

As for actual artistic and literary value, I imagine that's how a lot of "more explicit" works can get away with it. So in a way it kind of makes sense that intent matters, but a lot of people just don't understand it, and I think even upholders of the law may let knee jerk reactions overshadow logic. I pick Yosuga no Sora, because yes, there definitely is much to be taken into context; far more than it would seem at first glance. A lot of random doujin though, I really can't though.

But on a more lighthearted note, now you know why over here, a lot of pornographic movies have those excuse plots about stuff like plumbing or pizza delivery. Yes, that just give it just enough "literary or artistic value" to bypass the obscenity laws of then. So yes, it does have a purpose even though it's not the kind of stuff you could really have literature exams on. So yes people, don't get annoyed at those things-- they're literally here to protect your freedom! Kinda like those disclaimers that nobody really reads.

[SPARTAN 119]

I see this topic has come up again. I concur that obscenity laws are one of the most nebulous concepts in the legal system- given the legal definition, it's definition can literally change depending, the year the trial takes place, the generation in which the jury were born, and even the individual values of the jurors.

As for the whole insertion of the pizza delivery and plumber tropes in porn, I did not realize that was to keep the censors off, though. In that case, I would say that some ero-anime such as Yosuga no Sora, and, in particular, many eroge are in many cases more defensible in terms of the literary relevance than the paper-thin stories of western porn. Many of the visual novels I consider to be truly great examples of storytelling, the sex scenes were definitely secondary to the story (and in the case of Saya no Uta, creepy as fuck, albeit very fitting with the theme of the VN!).

[GDB]

Originally Posted by relentlessflame

It's interesting to note that the Handley case didn't go to trial not because the lawyer didn't believe he had reasonable arguments, but because it ultimately came down to whether the jury would consider the art "prurient", and assuming none of them had ever been seriously exposed to anime/manga/comics, they probably expected an over-reaction.

Though that could bring up a whole new argument about what constitutes "a jury of your peers".

[Archon_Wing]

That's sort of interesting, as lawyers are quite strategic in picking jurors, especially to suit their own agenda.

I would know, since I said that at Jury Duty, and was immediately let go afterwards.

[relentlessflame]

Originally Posted by GDB

Though that could bring up a whole new argument about what constitutes "a jury of your peers".

I do think that a "jury of peers" in the anime/manga/comics community would have a completely different standard and definition of art than people outside the community, but of course that makes them perhaps a poor representation of "society". A lot of it predicates on the perception of it being "crude depictions of people doing obscene acts", but I think many would argue that a lot of the appeal of anime culture is that they're fantasies/make-believe, not actually people. But of course, that also sounds a lot like a rationalization, as if it were some sort of attempt to find a loophole around content that would otherwise be obscene.

At the end of the day, I suppose it comes back to why these laws were put in place in the first place. Generally speaking, it wasn't to stop people from having "bad thoughts", but to protect people from bad actions. If the presumption is that allowing manifestations of "bad thoughts" will necessarily lead to "bad actions", and thus those manifestations of thoughts should be banned... well, that's obviously the very definition of a slippery slope. As is often said, the concept of freedom of expression has to include expressions that you personally don't like or agree with, or else it really isn't much of a freedom at all.

[Archon_Wing]

There's definitely a lot of laws around these parts that are not really reasonable in a modern context, especially in regards to the internet. You can definitely see this in all that SOPA and other crap regarding copyrights. It's very opportunistic and I see certain cases of people being made an example of very dreadful at this point.

A interpretation of the Wire Act (a rather old law that really conflicts with the way internet is used today) led to the downfall of online poker: https://en.wikipedia.org/wiki/Unlawf...nt_Act_of_2006 and that was shoved as part of another bill known as the "Safe Ports Act". And of course public opinion "aka peers wouldn't have a favorable opinion of "gamblers" such as poker players; and poker was a bit in the mainstream for a little while, a bit better off than anime. And much like anime, there's a lot of thoughtcrime and moral panic for it as well.

Poker was sorta the thing I was into before I went around these parts, so I tend to get more annoyed when my hobbies come under attack as such. I hope I don't come across as like the tumblr politics people or whatever they call people now. (I'm so glad I remain ignorant to these internet drama thingies. )