An Examination of Rationales for the Continued Prohibition of Virtual Child Pornography James Houston Bales, Independent Scholar Since approximately 2004, a single- commonly listed as one of the main types of panel comic strip has been floating around doujinshi, or fan-created manga.3 on the internet: A man with a shocked In the West, the Tijuana Bibles of the expression on his face seated at a computer 1920s and 1930s lampooned many popular exclaims “Calvin and Hobbes?” while the characters, real and created, including the text above the image reads “Rule 34: There clearly high school-aged cast of the Archie is porn of it. No exceptions.” 1 Since its comics and other invented and popular inception as a meme, it has grown from a characters of dubious legal age.4 But setting joke about what unexpected depravities can aside the questions of taste, copyright, and be found on the internet to a full-fledged expression such images raise, focus instead phenomenon mainstream enough for South on the oft-ignored speech balloon in the Park to joke about on Comedy Central. 2 center of that comment: The content which Fanart communities have long embraced the has the cartoon man so shocked is, concept behind Rule 34, with the idea of ostensibly, a pornographic image featuring, pornographic embellishment of existing as his creator Bill Watterson describes him, properties becoming popular enough to be the child Bill Watterson never was.5 This creates a problem where Rule 34 and fan-created content in the same vein runs afoul of the law. Passed in 2002, the PROTECT Act contains in its provisions this statement: “Nonrequired Element of NB: The editors of The Phoenix Papers Offense. – It is not a required element of any recognize that this is a delicate subject and offense under this section that the minor caution readers to judge for themselves whether the material will adversely affect their mental and emotional health before 3 What is Doujinshi, reading this article. We welcome letters to http://blog.fromjapan.co.jp/en/others/what- the editor should anyone wish to respond to is-doujinshi.html. this or any other article. 4 Oh Archie! Archie and the Tijuana Bible 1 Rule 34, Scene, http://knowyourmeme.com/memes/rule-34. https://www.bleedingcool.com/2017/01/30/o 2 South Park Addresses Rule 34, Yaoi, And h-archie-archie-tijuana-bible-scene/. the Problem of Aggressive Acceptance, 5 About Calvin and Hobbes, http://decider.com/2015/10/29/south-park- http://www.calvinandhobbes.com/about- yaoi-rule-34/. calvin-and-hobbes. The Phoenix Papers, Vol. 3, No. 2, March 2018 31 depicted actually exist.” 6 Created in the whether between persons of the same aftermath of Ashcroft v. Free Speech or opposite sex; and lacks serious Coalition, the PROTECT Act writes broad literary, artistic, political, or scientific value; or attempts or definitions that, especially when combined conspires to do so, shall be subject to with subsection (c) listed above, are the penalties provided in section designed to recriminalize what Ashcroft v. 2252A(b)(1), including the penalties Free Speech Coalition found to be protected provided for cases involving a prior speech: Non-obscene pornography in which conviction.9 no minors are involved.7 Before getting into the arguments, the What this statute seeks to criminalize is nature of this subject matter and the defined in Ashcroft as “virtual child 10 arguments to come requires that certain pornography.” Recognized by the Supreme concepts be defined before moving forward, Court as early as 1982’s New York v. Ferber lest the arguments lose their power through decision, virtual child pornography is an assumption of support for concepts they generally understood to be encapsulated by do not support. Specifically, the concept of the phrase “a visual depiction of any kind, virtual child pornography needs a definite including a drawing, cartoon, sculpture, or and limited definition. Returning to the painting” in the language of the PROTECT 11 PROTECT Act, subsection (a) outlines Act. Put a bit more simply, virtual child specific requirements for the offense the title pornography is pornography born wholly calls “Obscene visual representations of the from the imagination, depicting children, but sexual abuse of children:”8 without any real child involved at any stage of its creation. Limited in such a way, the Any person who. knowingly question can then be asked whether the produces, distributes, receives, or creation, possession, and distribution of such possesses with intent to distribute, a depictions can even be a crime at all. visual depiction of any kind, At this point, it is prudent to note that including a drawing, cartoon, nothing in this paper should be construed as sculpture, or painting, that depicts a a justification of actual child pornography. minor engaging in sexually explicit conduct; and is obscene; or depicts Focusing on the problematic intersection of an image that is, or appears to be, of harm and a victimless crime is impossible a minor engaging in graphic where a victim actually exists. The Supreme bestiality, sadistic or masochistic Court recognizes this same problem when abuse, or sexual intercourse, applied to this subject: “As a permanent including genital-genital, oral- genital, anal-genital, or oral-anal, 9 18 USCA § 1466A(a) (West). Subsection (b) uses the same language to criminalize 6 18 USCA § 1466A(c) (West). possession. 7 Ashcroft v. Free Speech Coal., 535 US 10 Ashcroft, at 236. 234, 238, 122 S. Ct. 1389, 152 L. Ed. 2d 403 11 New York v. Ferber, 458 US 747, 763, (2002). 102 S. Ct. 3348, 3357-58, 73 L. Ed. 2d 1113 8 18 USCA § 1466A (West). (1982); 18 USCA § 1466A(a) (West). The Phoenix Papers, Vol. 3, No. 2, March 2018 32 record of a child’s abuse, the continued include virtual child pornography, the initial circulation itself would harm the child who distinction he makes is quite important, had participated. Like a defamatory especially when considered in light of statement, each new publication of the Justice Kennedy’s analogy to defamation in speech would cause new injury to the child’s Ashcroft. Like child pornography, this paper reputation and emotional well-being.”12 Any will not argue for any legal protection for argument for the legalization of such records pseudo child pornography. Leaving aside of abuse is not an argument that can be England’s logic, which is largely used to made within the scope of this paper, and justify child pornography laws in general thus it must be set aside in favor of a narrow and creates no good, specific argument focus on the questions surrounding unique to pseudo child pornography, Justice legalization of virtual child pornography. Kennedy’s logic for defamation as a Another sort of child pornography exists justification for child pornography laws is in the space between virtual child possibly a better argument against pseudo pornography and the records of abuse child pornography than it is against general created in real child pornography, which I child pornography. will term pseudo child pornography. Such Generally, “[d]efamatory matter may images are discussed at length in Internet include statements that would subject one to Child Pornography and the Law: National hatred, ridicule, obloquy, or contempt, or to and International Responses by Yaman statements which would reflect negatively Akdeniz, although in relation to the laws of on one’s reputation for morality, integrity, or the United Kingdom. There, Akdeniz says honesty, or to matter which tends to the creation of pseudo child pornography is negatively affect one’s financial status or explicitly banned by statute, and Akdeniz standing in the community.” 14 While a gives an in-depth description of what the complete analysis of defamation as it relates statute seeks to ban: “Psuedo-photographs to the world of pseudo child pornography is are technically photographs, but they are beyond the scope of this paper, it is safe to created by a variety of ways including by say that a young person could certainly computers by the use of photo/image suffer reputational harm or be subjected to a software. For example, a child’s face can be myriad of negative reactions if their picture superimposed on an adult body or to another were to be manipulated into pornography. child’s body together with the alteration of People over the age of consent clearly the characteristics of the body.” 13 While feel harmed by falsely manipulated images, Akdeniz goes on, expanding his definition to as seen in Meryern Ali’s 2014 lawsuit against Facebook over a jilted lover posting 12 Ashcroft, at 249, citing New York v. such manipulated images.15 But it is another Ferber, 458 US 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). 13 Yaman Akdeniz, Internet Child 14 Defamation: A Lawyer’s Guide § 1:7. Pornography and the Law: National and 15 Woman files $123M suit against International Responses, 20-21 (Ashgate Facebook over photoshopped nude photos, 2008). https://arstechnica.com/tech- The Phoenix Papers, Vol. 3, No. 2, March 2018 33 paper altogether to make or refute that clogged court systems, such considerations argument. For the purposes of this paper, it are of extreme importance, as seen in is enough that a pseudo child pornography situations like California’s Proposition 47, case has someone who could be called a which has led to the release of thousands of victim to remove it from the analysis of this inmates.20 This right not to be criminalized problem. is important to note because while With the topic limited in such a manner, decriminalization in general is growing in a plain statement of the argument can finally popularity, a trend that can be noted in fields be made: Virtual child pornography should such as abortion and marijuana legalization, be decriminalized, as real-world sex crimes remain one area where runaway justifications and theories of criminal justice criminalization is not only accepted, it is fail to support its continued criminalization.