In response to Saletan's comments [see here] on a foreign ruling respecting treating sexual depictions of the animated Simpsons as child pornography, I noted that the U.S. Supreme Court has held that "real children" had to be involved.
A response that mostly reaffirmed my point added an important clarification that I should have included myself -- "nonobscene" depictions of virtual child pornography are not covered. IOW, yes, there can be obscene child pornography that only involves cartoon representations that clearly are not real children. In fact, you don't even have to have images. You can be put in jail, and some have, for merely writing about that or other sorts of [hard core] pornographic materials.
A ruling discussed here suggests what is at stake here. The complete package of allegations (one dropped out because a problem with one image) led to a twenty year sentence, partially a result of a past conviction and "repeated failure to abide by the terms of supervised release from his prior conviction" (including viewing verboten materials within weeks of release). And, fourteen of the seventy-four counts involved actual children. The fact he downloaded the materials at offices of the Virginia Employment Commission alone suggests stupidity. [Libraries have filters and employment commission computers don't?] He deserved some prison time.*
All the same, forty counts were based on twenty Japanese anime cartoons (each was counted twice, since he was charged for "receiving" them and receiving them as a previously convicted sexual offender), while twenty more concerned emails (mostly not even written by him) that "described sexually explicit conduct involving children, including incest and molestation by doctors." Thus, we can be told the scary/disgusting fact that he was convicted of "sixty counts of receiving child pornography" based on cartoons and words.
The cartoons btw underline how "obscene" is a matter of taste. It has been well discussed that many in Japan are comfortable with sexually explicit cartoons [here we were dealing with "prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced"] than even our sex laden culture is willing to accept, while considering any presence of pubic hair as verboten. Obviously so, since I don't think someone who purchases this anime or downloads it in Japan would get charged with child pornography. I'm not aware if they want you to download it at employment offices.
The convictions as to the emails (the focus of the dissent; the Supreme Court has clearly allowed convictions on mere text, so the majority very well might have been right -- as a lower court -- to rule as it did, but still, these emails and pornographic novels are not the same thing) is particularly problematic. We can talk about or even fantasize about criminal activity all we want in this country, though a few limits can be imagined, and many books (e.g., Lolita**) in fact include explicit discussion of criminal activity.
The arbitrariness of selecting a few for criminal conviction, especially when the guy could have been charged (especially as a wanton repeat offender) a significant time for downloaded images of actual children on a public computer (or even at home), is particularly troublesome. The principle in particular is at stake, since the same theory could be used when applied to some other distasteful (disgusting) and/or disfavored speech, such as of a violent nature. For instance, some courts have had difficulty with certain violent writings of troubled teenagers.
One more thing. The opinion noted that examinations of the offender here suggests he is inflicted by some condition that makes him attracted to children, and that he himself feared that he might actively harm them, though he felt able to resist. Like a lit match near a can of gasoline, some might use this as proof we must keep this material illegal. But, non-obscene materials (including medical and law enforcement related) will be enough. A bible can lead a person to be a terrorist.
Another view is that certain materials might be useful to avoid harm -- some might be satisfied with visual and textual materials. See also here. At the very least, if merely textual emails are involved, including individuals discussing their urges and so forth, it seems almost dangerous to target such a possible safety valve ... again, if no images of real children (or even some types of fictional images) are involved.
Here the emails alone were not targeted, but text alone (including a website involving explicit stories, fiction a means to deal with demons) was in other cases.
---
* The opinion spells out the details:
Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months’ imprisonment.
** The prevalence of Japanese anime with a child sexual theme was discussed in the book I recently referenced, Chasing Lolita.