As you may recall, under 18 U. This has already led to prosecutions for possession of comics or cartoons — in fact, animated child sex is reportedly being used as, well, clickbait by law enforcement. Could watching the Clickhole Calvin and Hobbes video get you sent to jail? One key aspect of current U. As a result Section A only bans non-realistic visual depictions such as the Calvin and Hobbes video if they are obscene or lack serious artistic, literary, political or scientific value.
Here, in brief, is why Congress went with that language. In a series of decisions several decades ago, the Supreme Court came up with a standard for obscenity that, it believes, passes constitutional muster.
The standard is known as the Miller test for determining obscenity, and it has three key components: By echoing this language, Congress hoped — and so far has mostly succeeded — in establishing a standard for visual depictions of minors in drawings, cartoons, sculptures or paintings that would survive a constitutional challenge. Section A a 1 and b 1 are somewhat more expansive. These provisions prohibit an obscene depiction of sexually explicit conduct, which extends to simulated bestiality and other sexual activity whether or not the genitals or pubic area appear.
What makes determining whether material is obscene particularly hard to determine is that the test looks to community standards — technically in regard to determining whether material appeals to the prurient interest or is patently offensive, but the community sensibility also tends to come into play in assessing whether a reasonable person would find that the material lacks socially redeeming value. This applies not only to a federal statute such as Section A, but any state anti-obscenity or anti-child pornography laws under which the Calvin and Hobbes cartoon could be assessed.
This reliance on community standards has had the effect of balkanizing U. What is obscene in one jurisdiction can be perfectly legal in another. The Iowa district judge in that case concluded that a 2 and b 2 are unconstitutional, but the 11th Circuit U. Court of Appeals, which covers Florida, Georgia, and Alabama, expressly disagreed.
In short, if the science of law is, to quote Oliver Wendell Holmes, an art of prediction, the current constitutional definition of obscenity is a Magic 8 Ball. Which also brings us to 18 USC C , a related provision that prohibits knowingly embedding words or digital images into the source code of a website with the intent a to deceive a person into viewing material constituting obscenity or b to deceive a minor into viewing material harmful to minors on the Internet.
If one is dealing with a judge or jury likely to conclude that the Calvin and Hobbes cartoon is obscene, there is an equally significant risk of being found guilty of using misleading words the clickbait headline and images the still frame before playing to trick either an adult or a minor into clicking play. And again, the rest of the world is not bound by our First Amendment jurisprudence and its definition of obscene, so there could be a greater risk elsewhere.