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As part of efforts to “save the children,” authorities in the United States and Canada have declared war on readers and collectors of Japanese manga and they have specifically targeted the lolicon style.

Legislators have in recent years broadened the law in regards to what is considered child pornography, because they assert without any supporting evidence beyond their own beliefs that any under-18 depiction of sex or eroticism contributes to the exploitation and victimization of children. This has mostly been done through the Amber Alert Law that had additional provisions that amended the legal code including 18 USC 1466A and 2252A.

I decided to write about this problem after hearing of another abuse of law, albeit in the Great White North of Canada, but I will discuss another case of this that happened in the US a few years ago further below.

Cory Doctorow on BoingBoing reports that the Comic Book Legal Defense Fund [consider contributing to this worthy advocate of the freedom of speech by going here] is taking up the cause of an American arrested in Canada for allegedly carrying manga on his laptop deemed by the authorities to be “child pornography.” His collection of manga was discovered when a border guard decided to dump his hard drive in a fishing expedition for anything illegal on the computer.

It should be noted that Canadian and United States border guards have the authority to search your computer even without any suspicion of wrong doing. In terms of United States law, border crossing are exempted from normal 4th amendment protection from unreasonable searches and seizures. Furthermore, border guards will likely dump the contents of hard drives or flash drives of selected (I say selected rather than suspected, because suspicion is not the threshold for selection) individuals for further analysis at special facilities that are setup for computer forensic analysis. The BC Civil Liberties Association has an explanation for Canadian border searches here.

I do not agree with recent laws in the Americas–in Canada or the United States–that equate art including manga to exploitative, photographic child pornography. In the case of manga, there are cultural and historical precedents for the evolution of the art form that includes what is called lolicon. Also, lolicon is a style and a genre that has comics devoted to male readers and female readers alike. Regardless, lolicon is art and speech, and it should be protected as such regardless of whether you like it or not.

In the case of photographic child pornography, there are real children who are exploited by bad people. This is not art, but instead, it is criminal rape and exploitation. People who prey on children to create pornography of real children who have no choice in the matter should be locked up. However, it bears noting that child pornography laws should not be exploited to arrest teenagers who agree to take pictures of one another.

In the case of lolicon, artists create works from their imagination that fit into the genre expectations of lolicon readers, who are not by definition child molesters. They create art in a particular style with a long and complex history, and collectors read it, admire it, and collect it.

For example, in the unfortunate case of Christopher Handley, an Iowa man who collects manga and holds a sizable collection of Japanese comics, was arrested by federal authorities after the Postal Service intercepted a number of manga he ordered directly from Japan. Some of these included lolicon art. The authorities seized his collection at home, but they only found eight comics that they took issue with. He was tried for accepting child pornography under the GWB-era expansion of the law, but under the advice of his lawyer [read his lawyer's press release here--it provides valuable context and the reality of obscenity trials--you are not likely to win in front of a jury], he pled guilty to a charge of obscenity in May 2009, which netted him 6 months in federal prison, 3 years supervised release, 5 years probation, and the forfeiture of seized materials. His sentence could ahve been significantly longer had he not agreed to a plea deal. Let’s get something straight here–he never was suspected of or arrested for any criminal act much less any act involving a minor. Instead, he was targeted for his choice of comic book collecting. I have looked online, but I cannot find any followup of Handley’s experience as a result of his hobby. However, the best report of the case and the named comics Handley was tried  for is over at the Anime News Network here.

Neil Gaiman spoke out against Handley’s arrest and trial here and here. In the latter post, “Why Defend Freedom of Icky Speech?”, Gaiman lays out his own defense for the indefensible in response to a reader’s comment:

Still, you seem to want lolicon banned, and people prosecuted for owning it, and I don’t. You ask, What makes it worth defending? and the only answer I can give is this: Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you’re going to have to stand up for stuff you don’t believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don’t, because prosecutors are humans and bear grudges and fight for re-election, because one person’s obscenity is another person’s art.

Because if you don’t stand up for the stuff you don’t like, when they come for the stuff you do like, you’ve already lost.

This is the problem in a nutshell: If we really believe in freedom of speech, we cannot also believe that there is something called “obscenity.” Obscenity is a subjective and unagreed upon standard that throws freedom of speech under the bus. They are all engaging in artistic speech that should be protected. Artists and collectors should not be held accountable to a standard that says this one art is speech and another is obscenity.

Gaiman also admits that his own work Sandman: The Doll’s House could likely run afoul of the law. Similarly, Alan Moore’s Lost Girls books could be considered child pornography. Should all collectors of those books be locked up and the books burned? Should Gaiman and Moore be held accountable–Gaiman is in Minnesota, which isn’t far from Iowa as the crow flies. I don’t believe that these artists and writers have done anything wrong, and I don’t believe someone like Handley, who collected ALL manga rather than lolicon exclusively, has done anything wrong either. However, Handley crossed a line drawn in the sand by overzealous protectors of children who shield their zealotry with the supposedly unchallengeable child in need of protection from the world.

It’s summertime, so how about picking up a copy of Lee Edelman‘s No Future: Queer Theory and the Death Drive. Edelman questions the “think of the children” politics that pervades American culture that I think is highly appropriate for putting these unjust laws into perspective.