Hentai, Avatars, and the First Amendment

In Jacobellis v. Ohio, Justice Potter Stewart gave the world the most highly quoted definition of obscenity ever to come from the bench when he said

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”

As a threshold standard it wins points for being  pithy but it is a bit nebulous. Who knows what Justice Stewart would have made of hentai, a breed of Japanese pornography that encompasses almost every perversion unleashed by man. Hentai includes comic books and cartoons that feature everything from garden variety bondage to water sports and erotic lactation, but in the West it is primarily used to describe manga and anime that involve sexual acts between (often underaged) women and cephalopds. This “tentacle porn” is synonymous with internet perversion. Even furries are creeped out by hentai aficionados.

It is skeevy. But is owning hentai illegal? Recently, the 4th  Circuit Court of Appeals upheld the conviction of Dwight Whorley for possession of obscene Japanese manga. Meanwhile, an office worker in Iowa faces a maximum fifteen year sentence for possession of hentai books as part of his massive manga collection. The impetus for both of these prosecutions is the the Protect Act of 2003, which criminalizes artificial depictions of obscene acts. These artificial depictions include drawings or computer-generated imagery, so comics and video games that feature obscene acts could land their owners in some seriously hot legal water.

First Amendment die-hards are justifiably peeved by the implications of the Protect Act. Actual photos or video of children engaged in sex acts are morally repugnant to just about anyone with half a conscience. Part of the problem with the Whorley conviction was that he also had several counts of actual kiddie porn. But there is something fundamentally wrong with criminalizing depictions that spring wholly from the imagination. No actual child (or squid monster) was harmed when the artists drew the pictures. Attaching the same level of criminal culpability to the owner of a piece of deviant cartoon art as to the owner of photographs creates dangerous precedent.

These artificial depiction provisions apply to computer generated images as well, so the implications could be far reaching. How does one apply the Miller test (which replaced Stewart’s formulation with greater certainty but less aplomb) to virtual depictions? How do you appraise the interaction of two Second Life avatars in terms of obscenity? Do simulated sex acts between a half-man, half-bear, half-pig hybrid and a Catholic school girl whose pixelated plaid miniskirt would make Lady GaGa blush deserve to be punished with criminal sanctions when the entire thing occurs in ones and zeroes on the virtual world servers? Because those sort of interactions and worse are happening as I write. The implications are troubling, especially considering the likely fact that both participants in the simulated sex act are likely to be forty year old men. Or what about the graphical depictions of sex acts between a thirteen year-old Alliance gnome and a Horde Tauren (a type of minotaur) because you know they are coming.

Do these sort of virtual depictions appeal to the prurient interests, depict sex acts in a patently offensive way, or lack serious artistic value. Under these criteria of the Miller Test, online interactions such as these probably don’t measure up to obscenity. But they could potentially fall within the reach of the Protect Act, especially if comic book depictions count. Until the Supreme Court takes up this issue perverts, video game players, and extreme art collectors alike are in uncertain waters.

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