Pornography and the First Amendment
The First Amendment protects pornography with two main exceptions: "obscenity" under Miller v. California and "child pornography" under New York v. Ferber.
Obscenity is not protected by the First Amendment. The test for obscenity is given in
Miller v. California:
- The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest in sex.
- The average person, applying contemporary community standards, would find that the work depicts or describes sexual conduct in a patently offensive way.
- A reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Child pornography is not protected by the First Amendment, even if it isn't obscene under Miller v. California. The test for child pornography was given in
New York v. Ferber:
There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. The category of "sexual conduct" proscribed must also be suitably limited and described.
Virtual Child Pornography and The CPPA
The first law to prohibit virtual child pornography was the Child Pornography Prevention Act of 1996. This changed the child pornography laws to include any visual depiction which "appears to be" of a minor or is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor".
Importantly, there was no requirement for the depiction to be obscene.
CPPA Struck Down
The ban on virtual CP in the CPPA was struck down in
Ashcroft v. Free Speech Coalition.
The reason was that the CPPA banned depictions which weren't obscene under Miller v. California or "child pornography" under New York v. Ferber:
In sum, § 2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.
The PROTECT Act
In response to the ruling in Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003. (Some people think that Ashcroft v. Free Speech Coalition struck down the PROTECT Act for some reason. They are getting confused with the CPPA)
The PROTECT Act added 18 U.S.C. § 1466A which bans:
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;
The PROTECT Act avoids the problems the CPPA had, since it requires the depiction to be obscene under the Miller test before it becomes illegal (except for (2)(A) and (B) above which are discussed next).
PROTECT ACT Partially Struck Down
Parts of the PROTECT Act were struck down in
United States v. Handley, specifically this part:
(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;
This is because there is no obscenity requirement in that section. Since it bans material which isn't illegal under Miller or Ferber, it was struck down.
The rest of 18 U.S.C. § 1466A is still in effect. It pretty much reads like this now:
So lolicons can be found guilty under 18 U.S.C. § 1466A as long as the depiction is obscene under the Miller test.
Possession
One difference between "obscenity" under Miller v. California and "child pornography" under New York v. Ferber is that the government can ban possession of "child pornography" (under
Osborne v. Ohio):
Given the gravity of the State's interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.
Possession of "obscenity" in the home can't be banned (under
Stanley v. Georgia):
We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.
Since lolicon is only "obscenity" (and not child pornography under New York v. Ferber), the government cannot ban possession of lolicon.
However, the government can ban receipt of lolicon through interstate commerce (
United States v. Orito). This includes things like the Internet and mail:
Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home.
Since most lolicons probably get their loli porn off the Internet, they could be charged.