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Partial Victory in Handley Case Ruling

PROTECT Act Weakened

Published: 10/10/2008, Last Updated: 10/13/2008 03:48am

The United Defense Group scored a partial victory in the Handley manga obscenity case (see "CBLDF in Manga Obscenity Case") in a ruling last summer as the court ruled that sections of the PROTECT Act 1466 a(2) and b(2) are infirm because they “do not require that the material be deemed obscene” by a jury, but instead substitute standards set by Congress as to what is per se or patently obscene.  The Court cited the Supreme Court’s decision in the Smith case to argue that “appeals to ‘prurient interest’ and ‘patent offensiveness’ are standards that cannot be defined legislatively and instead are questions of fact for the jury to resolve” (using the Miller criteria).

 

The three criteria that must be met in order to judge material obscene that are set forth in the Miller case are: (1) would the average person find that the material appeals to the prurient interest; (2) whether the material depicts, in patently offensive way, sexual conduct specifically defined by applicable state law; (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 

The ruling was far from a total victory for the defense as the court disagreed with several of the defense’s motions and did not grant them.  The defense argued that the defendant had the right to possess pornography in which no real children were used, a concept that the court rejected, as it did Constitutional challenges based on the vagueness of the terms “appears to be” and “minor.”

 

The court also did not agree with the defense’s contention that the possession of the material by Handley in his own home was protected by the Fourth Amendment’s right to privacy, declaring it was not disposed to “permit importation of admittedly obscene materials simply because it is imported for private use only.”

 

"Importation" is at the very heart of the the Handley case, which began in May of 2006 when a Postal Inspector examined an express mail shipment from Japan to Mr. Handley that contained seven volumes of manga.  The Inspector determined that the package contained images of objectionable content and then applied for a search warrant.  Mr. Handley, who had no idea that his package had been searched, picked it up at the post office and was followed home by various law enforcement officers, who seized his collection of over 1200 volumes of manga as well as hundreds of DVDs, VHS tapes, laser discs and seven computers.  Though Handley’s collection included a wide spectrum of manga, he is being prosecuted for images from just a handful of volumes.

 

With the fate of the case now resting squarely on the Miller criteria, the role of the CBLDF in providing expert witnesses who can testify to the literary and artistic merits of the manga in question is crucial.

 
 
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