Handley's Attorney Comments on Obscene Manga Case

March 2, 2010
Los Angeles, California

On February 11, 2010, Christopher Handley was sentenced in Iowa for possession of Manga books and magazines. The prosecution, which began in 2006, was based on the notion that the cartoon images were obscene. My name is Eric Chase, and I am Chris Handley's attorney. I have been reading some of the comments about Chris' case and have noted some considerable confusion about the process that Chris went through as well as the state of obscenity law in the United States. In the hope that it will help others avoid Chris' situation and aid the understanding of those outraged by the outcome, I feel it appropriate to now explain the case from our perspective.

Of all the comments I have come across, perhaps the most interesting to me was one made shortly after Chris entered his guilty plea. It was a criticism of a statement I made in a Wired magazine interview. I said, "Obscenity is the only law I'm aware of, if a client shows me a book or magazine or movie, and asks me if this image is illegal, I can't tell them." The criticism was, "Lawyers who specialize in obscenity cases…track jury verdicts and can tell you with nearly 100% reliability whether what they're looking at would be ruled obscene by a jury…."

First, the idea that any lawyer can tell anyone with anything approaching 100% certainty what a jury will decide about anything is just plain silly. Jurors are people. As such, any trial lawyer will agree that the only thing predictable about juries is that they are unpredictable. Second, look at the Max Hardcore case. He was represented by Louis Sirkin, who is widely regarded as the top obscenity lawyer in the country. He is the lawyer who won Free Speech Coalition v. Ashcroft in the U.S. Supreme Court. Max Hardcore was a prolific producer of "cutting edge" pornography that many found disgusting. For example, it included urination as a form of degradation role-play. However, it occurred between, was distributed by, and was purchased by consenting adults. Despite Mr. Sirkin's exceptional arguments regarding artistic merit, freedom of speech, and community standards, Max Hardcore was convicted by a jury and was sentenced to 46 months in federal prison. (On its initial appeal, the verdict was upheld but it has been remanded for re-sentencing). In fact, that verdict, which is as ridiculous as the prosecution of Chris Handley, was particularly disheartening as we considered plea offers.

In understanding Chris' situation, you have to understand the Ashcroft opinion, which has been universally and tragically, at least for Chris, misunderstood. That case held that sexual images of virtual minors could not be prosecuted as child pornography. However, it did not hold that virtual child pornography was legal. Rather, it expressly stated that those depictions could be prosecuted as obscenity under the Miller standard. In short hand, Miller's three prongs require for conviction a finding that a depiction is 1) sexual in nature (prurient); 2) patently offensive; and 3) lacking in serious literary, artistic, political, or scientific value. The first two prongs are judged by community standards and the third by an objective standard.

Chris, like most everyone else who had only heard about Ashcroft from news accounts that shoddily reported that the Supreme Court had "legalized virtual child porn," believed the magazines were legal when he bought them. As importantly, Chris was not a collector exclusively of lolicon. He was a collector of all things manga. Of the thousands of books and magazines found by the Feds at Chris' home, only about twenty had questionable content and ultimately only seven were charged as clearly depicting the violent sexual abuse of obviously very young children.

What Chris did not know was that in direct response to the Supreme Court's suggestion in Ashcroft, Congress passed 18 USC 1466A, which criminalized as obscenity a laundry list of virtual depictions, including comics, that portray the sexualization of children. The big difference between 1466A and the general obscenity statute is that the former carries a 5 year mandatory minimum sentence for the more serious charge of "receipt" (and is cross-referenced in the Federal Sentencing Guidelines to child pornography so it gets the same presumptive sentence as if it were real child porn). Now, "receipt" is an odd charge that is applicable in nearly every possession case. Simply, you can't possess something without first receiving it. Yet, receipt carries the 5 year mandatory minimum sentence, while possession does not. If the case had gone to trial, the jury would have been prohibited from hearing about the minimum applied to the receipt charge, and thus, would not have considered it in determining which, if any, of the charges to convict him of. Through its choice to create two crimes with vastly different sentences for the same conduct, Congress gave to the prosecution an invaluable tool (quite similar to extortion) in obtaining pleas.

So, Chris had the following difficult options. He could defend the images which, when projected on an 8'x8' screen on a courtroom wall, an Iowa jury certainly, and any jury probably, would have likely agreed they "do not want in their community". (I note that a ban on "kids having sex" pictures, even when only drawn, appears widely supported even by many otherwise apparently liberal bloggers.) His second choice was to have the receipt charge and its mandatory minimum dismissed and focus at sentencing on his personal situation, which certainly did not merit serious jail time. His ultimate sentence was 6 months with a recommendation that his term be served in a halfway house. Unlike Max Hardcore, who opted for the trial (remember, his prosecution was equally, if not more, offensive to notions of free speech), Chris will likely never have a jail door slam behind him.

I know the Comic Book Legal Defense Fund and others concerned about the defense of comic books specifically, and free speech generally, are upset that the case did not go to trial. They are right to be. The Miller obscenity test is vague, indecipherable, and clearly chills protected speech. Among its most frightening aspects is that its "community standards" element may allow "moral majority" communities to dictate to the rest of us. The extortionate tool given to prosecutors through the receipt charge, with its mandatory minimum, gives incentive to defendants to not mount appropriate "community standards" or "serious artistic value" challenges.

In defense of Chris Handley, given his choices, I suppose all I can do is ask: What would you have done?

To the CBLDF and other commendable defenders of free speech whom we may need now more then ever, there is some hope on the horizon. Louis Sirkin and Max Hardcore are currently waging an important battle in their appeal of his conviction on the issue of what the appropriate community is for the Miller test. The argument, with which some courts have already agreed, is that in an interconnected internet world, you can't allow the most repressive of "communities" to dictate what is available to everyone else. There exists a split among Federal Courts of Appeal in different parts of the country that the U.S. Supreme Court is expected to address and resolve. It may even be that Max's case is a better platform for the battle than would have been Chris' in that it does not involve the explosive element of "children" and instead can focus entirely on the fundamental shortcomings of obscenity law in its current state.

However, though it would be great for Max Hardcore, who would get a new trial, a win on the "which community" question will have little practical effect at future jury trials on obscenity. A Bible belt jury will be "instructed" to apply a national standard instead of their county's. So what? As they always have when asked what they believe community standards should be, they are still going to apply their own personal standards. This suggests a more fundamental problem with the Miller test.

That problem, which the Supreme Court has contorted to overcome in upholding the Miller test, is vagueness. "Void for Vagueness" is a constitutional doctrine that requires that a criminal law's proscriptions be ascertainable so that a person is put on notice before he or she acts about whether his or her contemplated action will violate the law. To the extent that the response to my Wired statement is correct about being able to tell ahead of a trial what a jury will find obscene, it is only correct about the extreme depictions that have, so far, been the focus of prosecutorial attention. As I have read the reaction to Chris' plea and sentence, I have seen a questioning of the legality of everything from Nabokov and "American Beauty" to Japanese Yaoi, which depicts figures that are androgynous, hairless, and clearly childlike, but not clearly children. If you asked me today whether it is legal to sell Yaoi on the Internet knowing that it would be available in Iowa or most anywhere in the south, I am not sure what the answer would be.

I am, however, certain from comments I've read that some who have heard about Chris have already destroyed literature that certainly should not be considered illegal. That "chilling effect" on free speech is precisely the reason for the vagueness doctrine. So, the question should not just be which community is being polled, but how can we rely on polling at all when such an important right is at stake and the poll results change each time they are taken?

However, the fight for a national standard is the one that has currently been joined. For now, let us wish Mr. Hardcore and Mr. Sirkin well, and let us also wish well to all those who continue the fight for all of our fundamental liberties. While we're at it, let us also wish well to Christopher Handley.

Eric A. Chase, Esq.
United Defense Group, LLP
[email protected]