Pornography and the First Amendment
The First Amendment protects pornography with two main exceptions: "obscenity" under Miller v. California and "child pornography" under New York v. Ferber.
Obscenity is not protected by the First Amendment. The test for obscenity is given in
Miller v. California:
Child pornography is not protected by the First Amendment, even if it isn't obscene under Miller v. California. The test for child pornography was given in
New York v. Ferber:
Virtual Child Pornography and The CPPA
The first law to prohibit virtual child pornography was the Child Pornography Prevention Act of 1996. This changed the child pornography laws to include any visual depiction which "appears to be" of a minor or is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor".
Importantly, there was no requirement for the depiction to be obscene.
CPPA Struck Down
The ban on virtual CP in the CPPA was struck down in
Ashcroft v. Free Speech Coalition.
The reason was that the CPPA banned depictions which weren't obscene under Miller v. California or "child pornography" under New York v. Ferber:
The PROTECT Act
In response to the ruling in Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003. (Some people think that Ashcroft v. Free Speech Coalition struck down the PROTECT Act for some reason. They are getting confused with the CPPA)
The PROTECT Act added 18 U.S.C. § 1466A which bans:
The PROTECT Act avoids the problems the CPPA had, since it requires the depiction to be obscene under the Miller test before it becomes illegal (except for (2)(A) and (B) above which are discussed next).
PROTECT ACT Partially Struck Down
Parts of the PROTECT Act were struck down in
United States v. Handley, specifically this part:
This is because there is no obscenity requirement in that section. Since it bans material which isn't illegal under Miller or Ferber, it was struck down.
The rest of 18 U.S.C. § 1466A is still in effect.
So lolicons can be found guilty under 18 U.S.C. § 1466A as long as the depiction is obscene under the Miller test.
Possession
One difference between "obscenity" under Miller v. California and "child pornography" under New York v. Ferber is that the government can ban possession of "child pornography" (under
Osborne v. Ohio):
Possession of "obscenity" in the home can't be banned (under
Stanley v. Georgia):
Since lolicon is only "obscenity" (and not child pornography under New York v. Ferber), the government cannot ban possession of lolicon.
However, the government can ban receipt of lolicon through interstate commerce (
United States v. Orito). This includes things like the Internet and mail:
Since most lolicons probably get their loli porn off the Internet, they could be charged.
