(2/14/10: Final sentencing update of Handley at bottom of post. Pretty grim…)
A Manga Fan Is Arrested In His Home For Owning Manga
From CBLDF’s October 09, 2008 press release:
Mr. Handley’s case began in May 2006 when he received an express mail package from Japan that contained seven Japanese comic books. That package was intercepted by the Postal Inspector, who applied for a search warrant after determining that the package contained cartoon images of objectionable content. Unaware that his materials were searched, Handley drove away from the post office and was followed by various law enforcement officers, who pulled him over and followed him to his home. Once there, agents from the Postal Inspector’s office, Immigration and Customs Enforcement Agency, Special Agents from the Iowa Division of Criminal Investigation, and officers from the Glenwood Police Department seized Handley’s collection of over 1,200 manga books or publications; and hundreds of DVDs, VHS tapes, laser disks; seven computers, and other documents. Though Handley’s collection was comprised of hundreds of comics covering a wide spectrum of manga, the government is prosecuting images appearing in a small handful.
To give some context for how extraordinary this is, CBLDF Executive Director Charles Brownstein said this:
Handley’s case is deeply troubling, because the government is prosecuting a private collector for possession of art. In the past, CBLDF has had to defend the First Amendment rights of retailers and artists, but never before have we experienced the Federal Government attempting to strip a citizen of his freedom because he owned comic books.
To Protect The Children
And what moved this postal inspector to set up this sting? Well, of course it has to do with alleged drawings of underage characters. Not photographs, mind you — or even drawings of actual minors — but drawn manga characters who only ever existed in the minds of the creators before ever seeing life on paper. Luckily, in this case, the judge dismissed the issue of alleged child pornography:
(Again from the press release)
Eric Chase and his team at the United Defense Group have been vigorously defending Handley, and scored a major First Amendment victory earlier this year when the judge found portions of the PROTECT Act unconstitutional in his ruling on a motion to dismiss. District Judge Gritzner of the Southern District of Iowa found that subsections 1466(a)(2) and (b)(2) of 18 U.S.C. 1466A unconstitutional. Those sections make it a crime to knowingly produce, distribute, receive, or possess with intent to distribute, “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,” that “is, or appears to be” a minor engaged in sexual conduct. Judge Gritzner found that those sections restrict protected speech and are constitutionally infirm.
Simon Jones provides his as-always excellent analysis why the defense team succeeded in this motion:
…the presiding judge has ruled that the portion of the PROTECT Act which deals specifically with the depiction of minors cannot be applied to this case. (The Supreme Court earlier this year addressed this issue. While this section survived, the justices were also clear that it can only be applied to fictional imagery when the image is clearly based on or derived from actual identifiable minors, i.e. a tracing or digital composite imagery.) [EDITOR NOTE: I discuss this ruling a bit and quote some of the text in this comment — look at the bottom of the comment for my discussion.]
But this manga fan can still be prosecuted for purchasing and possessing obscene material — and faces up to twenty years in prison for this alleged crime!
(Again from the CBDLF press release: )
Handley now faces charges under the surviving sections of 1466A, which will require a jury to determine whether the drawings at issue are legally obscene. The material cannot be deemed obscene unless it meets all three of the criteria of the Miller test for obscenity: “(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; [EDITOR NOTE: That means it’s intended to sexually arouse — offensive violence is, of course, in itself still considered protected speech. ] (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The jury must answer all three questions in the affirmative in order to convict.
How much danger is this manga fan in? Simon gives us the real-world context:
However, Handley is still on the hook for obscenity related offenses, and this is where the waters become murky. The defense’s best chance is to convince the jury that the manga passes the last of the three-pronged Miller test. But this is an uphill battle, as the jury is asked to decide (in the third portion of the test) whether the work has serious artistic value, instead of whether the work was a “serious artistic endeavor.” The spirit of the law really asks for the latter – serious artistic endeavors still routinely produce bad art that nevertheless deserve protection, unfortunately that’s not how the standard is worded. And obscenity laws have a built-in catch 22: if a jury finds the material not obscene, they are in effect saying that the material is regularly consumed in their community at least, that’s what the prosecution would lead the jury to believe. Now, how many people who own porn would admit that to, say, a prospective employer? Their friends and relatives? In a court of law? The fear and embarrassment factor is so great, juries often completely disregard expert testimony.
So, without a lot of smart defensive lawyering, things look pretty grim for this manga fan. Now, why is this guy’s case important for you and me? Because case law sets precedent. If this guy is successfully prosecuted, it emboldens prosecutors to go after other manga fans and makes it more likely that they will get convictions. As we all know, “protecting the children” has tremendous political appeal — and manga fans both in this country and in others are often seen as easy targets for the media and the government.
What this prosecution needs is a splash of cold water.
What Can You Do
Prosecutions are very expensive — for the defendant. The government has vast financial resources they can to bring to bear to “protect the children” — fictional or not –and the typical manga fan, as you know, often doesn’t. The Comic Book Legal Defense Fund is contributing money, time and expertise to defend this manga fan — and I know they are just squeaking by in terms of having any money to work with. Let’s face it — when it comes to providing legal funds to protect comic book creators and retailers from censorship and prosecution, how many people do you know who have given any money at all?
Well, now’s the time. Even a little bit of money will make a huge difference. Give $20. Give $40. Hell, give $5 dollars. Whatever. If you think what the government is doing here is wrong — if you think people should be able to buy and own manga — even manga that you, yourself, might not approve of — without going to jail for twenty years, then give money to the Comic Book Legal Defense Fund right now.
If you give $30 on this page, you even get a snazzy print of some green creature with horns holding a torch, and gosh, how cool is that?
(And if you don’t want to give one of their predetermined amounts, you can just use the PayPal Donation Button on the right sidebar of their press release page. [Scroll down just a bit on that page and look to the right for PayPal.] I just gave them $100 that way — took me ten seconds.)
You can’t let the government get away with this. You need to take action right now. Become a card-carrying member of the Comic Book Legal Defense Fund. Donate some money to help protect creators, retailers and fellow manga fans from unfair prosecutions.
Because the next manga fan they could go after — could very well be you.
(Thank you to MangaBlog for making me aware of this. For more information, here are other links Brigid at MangaBlog and Simon reference:
And here’s an opinion piece at The Comics Reporter about why the issue is the law not the man.
And now Simon points to an excerpt from the new issue of Comic Foundry that speaks to prosecutions relating to sex in comics in general. It doesn’t take in account of the latest decision in the Handley case that takes the chld pornography charge off the table, but it does speak to other laws, such as a new law in Oregon that “criminalizes giving or selling material with visual or verbal depictions of sexual conduct to anyone under 18, ‘for the purpose of arousing or satisfying the sexual desires’. Definitely worth reading.
UPDATE 12-17-08: And here are two editorials on this matter by industry giants that are both well-argued AND encourage support for the CBDLF, so if you’re still on the fence about making that donation, check these out:
UPDATE 5-14-09: Now here’s a great essay from ComiPress — really great, actually — on two cases of Americans prosecuted for viewing cartoon images. Balanced and smart. (And it reveals that Handley is likely to plead guilty in the hopes to end the nightmare the government is putting him through…)
The always excellent Brigid Alverson writes her own clear-headed, thoughtful and easy-to-digest take on that essay.
And a response from CBLDF Charles Brownstein On The Christopher Handley Case about why a guilty plea is even possible. (The CBLDF usually makes pleading “not guilty” a condition of their willingness to take on First Amendment cases.)
UPDATE 6-18-09: Handley, on the advice of his attorney, did in fact plead guilty. This Wired article gives the details and includes a link to Handley’s plea agreement (PDF file) (in which Handley gives up pretty much all of his rights and exposes himself to a potential sentence of a decade in prison for owning comics. While I don’t think that this attorney acted in Handley’s best interest here by advising him to plead guilty, I am not an attorney myself — hopefully, this will mean that Handley will be able to get on with his life and will not, in fact, be spending years in prison and/or paying a fine of up to $250,000.00. I suppose we’ll see when it comes time to sentence him.
UPDATE 2-14-10: Well, if being sent to prison for 6 months, serving five years of probation while receiving treatment “intended to provide [Handley] with diagnosis and treatment for sexually and/or gender identity or other mental health issues” can be considered getting on with his life, then it was a great decision to plead guilty. Based on what I was reading about the sentencing recommendations, I can’t say I am surprised, but the whole thing makes me very angry. While I’m not personally a fan of shota or lolicon, the books are just ink on paper with no actual children ever involved! This is an awful example of the best of intentions (protecting children) snowballing into over-reaching hysteria. It’s a travesty of justice and a very dangerous precedent. (Although, as Simon Jones of Icarus Publishing points out, happily not a legal precedent. Also, for more on the psychological treatment issue, check out the comments section of this The Yaoi Review post where the author of the ANN article reveals more details.)
UPDATE 2-21-10: I’ll close this out with one last link, from ICv2, which highlights both the absurdity and the tragedy of this case. The absurdity come from the prosecution’s argument that no real children needed to be involved in this crime because comics are “powerful”:
“Some may argue that the crime at issue is not serious because no real children were involved. Such a viewpoint is short-sighted because it gives little weight to the nature of obscenity crimes, in general, and to the specific images involved in this case. A picture, proverbially, paints a thousand words, and there is no doubt that comic books, graphic novels, and works of manga and anime have a powerful ability to communicate through their use of dramatic imagery. Since the 1960s, the genre of comic books has been transformed from a target market of younger customers to a broad, word-wide market aimed at older, more mature consumers. The ground-breaking graphic novel, Watchmen, by Alan Moore and Dave Gibbons was even named by Time magazine of one of its top 100 novels of the 20th century. The power of the illustrated story should not be short-changed.”
and the tragedy is nicely summed up by Handley’s friend in a letter to the judge:
“Regarding this case, I am personally unable to understand the reasoning and justice behind the criminalization of the act of reading a comic book that contains objectionable sexual material. This is especially hard to understand when other more heinous material permeates our society and has not been criminalized.”
Murder, for instance, is glorified and portrayed with real humans in movies. If it is true that a person is likely to commit the crime of child molestation merely because that person has been looking at drawings depicting that act then why is it not a crime to watch movies or look at drawings of murder?…”
“I am truly sorry that Chris has been the victim of such a pitiful legal defense and lawmakers attempting to legislate morality. It is my hope that you will also see the injustice of this situation. I fully trust and expect you to carry out your responsibility to the people and do what is right.”
Lost his job, lost his computer, five years supervised probation, 6 months in prison.
Sad, stupid and just awful…
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