Legal Status of Cartoon Pornography Depicting Minors - United States - 18 USC 1466A

18 USC 1466A

In response to Ashcroft v. Free Speech Coalition, Congress passed the PROTECT Act of 2003 (also dubbed the Amber Alert Law) and it was signed into law on April 30, 2003 by then president George W. Bush. The law enacted 18 U.S.C. § 1466A, which criminalizes material that has "a visual depiction of any kind, including a drawing, cartoon, sculpture or painting", that "depicts a minor engaging in sexually explicit conduct and is "obscene" or "depicts an image that is, or appears to be, of a minor engaging in ... sexual intercourse ... and lacks serious literary, artistic, political, or scientific value". By its own terms, the law does not make all simulated child pornography illegal, only that found to be obscene or lacking in serious value. And mere possession of said images is not a violation of the law unless it can be proven that they were transmitted through a common carrier, such as the mail or the internet, or transported across state lines. There is also an affirmative defense made for possession of no more than two images with "reasonable steps to destroy" the images or reporting and turning over the images to law enforcement.

Criticism of the law has been levied on its wording. Lawrence Stanley noted that, "The moral slippage in the law is palpable in the way it conflates images of actual minors with fictional representations: it refers to "depictions of minors," and, by reference to the other provisions in the law, defines acts engaged in by "persons," but how is a cartoon character a person?" The argument drawing on the definitions of 18 USC § 2256, which defines a minor as "any person under the age of eighteen years."

In 2008, the law was tested in the courts. Parts of the law, such as the criminalization of a "visual depiction of any kind" were rendered unconstitutional by the judge in the Christopher Handley case. However, in the Dwight Whorley case, the conviction was been upheld on appeal to the 4th Circuit. The court noted that the minors depicted in obscene material need not exist. The Supreme Court would later refuse to review the Whorley case.