Lolicon equal child pornography?

[Yukimura]

Besides, why should it matter in which state the person lives if he/she imports "obscene" books only to view him/herself?

An Excerpt from Article 1, Section 8 of the US Constitution which describes the powers of Congress.

The Congress shall have Power To....regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;...

In the case we're discussing it doesn't matter what state he lives in, it matters that the material was purchased from another nation (it could have been another state as well) thus the transaction is under the jurisdiction of the Federal Government. Congress can restrict or regulate interstate or international commerce in any way it sees fit provided it does not violate the constitution in doing so. Restrictions on obscenity are commonly upheld as a valid exception to the First Amendment with several Supreme Court cases backing up the practice. For this reason there is no judicial issue with passing laws which restrict obscenity other than that the law employs the judicially mandated Miller Test in classifying materials as obscene.

Why are some random 12 persons from your state to decide what is likely to deprave your morals (or what has sufficient artistic/scientific value to allow you to endanger your morals) ?

Read up on the Miller vs California Supreme Court decision. It is what established the 'Miller Test' and that is what requires that issues of whether something is obscene be put before a jury in the community in which the offense is being prosecuted. The alternative would be the Government having to decide on a universal standard of obscenity for everyone everywhere. The idea behind letting the jury decide is that 12 people in Iowa may have a different sense of obscenity than 12 people in Miami and this should be taken into account when judging what is obscene.

Why does it make a book so much more dangerous if it was imported or even merely transported across state borders, especially in the age of Internet?

It's not about being 'more dangerous' it's about law and jurisdiction. The Federal Government has jurisdiction over interstate and international commerce and there are Federal laws against trafficking obscene materials across state lines or into the US from abroad. For the purposes of this issue the Internet isn't treated differently than from a phone or mail service (See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)).

The only remaining question is: Why has something that "taken as a whole, appeals to the prurient interest" no merit to be protected by the Constitution.

The whole concept reeks of Middle Ages' dogmatism and hopefully will be revised soon.

This question essentially asks why obscenity is considered worthy of an exemption to the First Amendment (albeit poorly worded) which is a question still debated in legal circles today. Looking at the other commonly upheld exceptions: "Defamation, Causing panic, Fighting words, Incitement to crime, and Sedition" it would appear that the purpose of exemptions to free speech protection is to give Congress leeway to prevent speech that would or could very likely cause harm to individuals. Unfortunately what constitutes 'harm' is a pretty gray area but with legal matters the more often the same interpretation is reached the stronger that interpretation becomes entrenched as precedent. If the courts ever change gears and decide that there's no harm in not regulating obscenity (fat chance) or there's not enough harm in not regulating obscenity to warrant exempting if from the first amendment protection (maybe but again, not likely) then perhaps anti-obscenity laws will be struck down but fat chance of that happening while there are still monotheistic religions and parents in this country.

Personally I would agree that obscenity laws are outdated and in my opinion overly restrictive but I don't believe that the Founding Fathers put much thought into establishing looking at things other people might not want to see as a 'right' of citizens. I wouldn't look to the courts for much support on this issue beyond the Miller test which at least gives the final say on what is 'obscene', and thus exempt from the First Amendment, directly to the people rather than to the Government.

If people don't like these laws they can and should try to elect officials who will change or repeal them. It is not the role of the courts to legislate, only to keep the legislature from overstepping its Constitutional bounds. Though realistically the idea of Congress voluntarily over turning or relaxing any anti-obscenity legislation almost laughable. It would likely amount to political suicide for anyone who supported it. There is no tenable way to convince parents and social conservatives that 'obscene things' should require anything short of a Herculean effort to obtain even if they must be legal to possess under the constitution. I doubt that Congress will ever be populated by enough individuals capable of ignoring the family values and social conservative voting blocks to ever relax any obscenity standards

[Hayami]

>.<

I've the feeling I'm in the wrong film or something >.>

I didn't mean to ask how is it technically possible to prohibit import or interstate transportation of any item/matter into/inside US. The meaning of my question was: Does it make sense to create a crime of transportation of obscene books even though there's no sufficient evidence of any harm?

Further, I know that anything that's deemed "obscene" is seen by the courts as something that doesn't deserve to be protected. I just ask whether it's right, fair, and serves any good purpose at all to do so.

Obviously I know what's Miller Test. Obviously a direct regulation through the government would be even worse. Does it mean that a jury has the ethical right to judge someone based on Miller Test?

Law and jurisdiction usually make sense. OK, let's say, "often" make sense. Again, I'm not asking how is it technically possible to prohibit something or punish for something. I'm asking whether it makes sense from ethical point of view, all affected parties considered.

Regarding your "other exceptions": the most of them involve either targeting of a real person (Defamation, Fighting words) or tangible harm (Causing panic, Incitement to crime). Sedition seems to be a more tricky subject, but even in this case there's an intent to encourage obviously harmful acts. A book that's deemed "obscene" doesn't necessary encourage any acts. We all know that the vast majority of manga fans can separate fantasy from reality. So called "obscene" manga aren't "instruction books" but just a erotic variety of entertainment that features tabu topics. There's no victim here and no tangible harmful sequences (unless people are dragged into reading/looking against their will).

Anyway, sadly I must agree with your pessimistic prediction. I just think that the very majority that tries to (forcefully) uphold public morals will pay for their injustice one way or another. For example, it's ironic that sexuality-related profanity becomes more and more common, even the upholders of morals resort to it.

[Yukimura]

If all you were asking was whether it made sense ethically then I'd have to say it depends on what perspective you look at it from like most ethical matters. If one believes in absolute liberty unless it directly affects another's liberty then it doesn't make sense to make it completely illegal to transport obscene materials across state lines. Requiring that precautions be taken to ensure no one who's not supposed to see the materials sees them should be sufficient to protect people from seeing things they don't want to. However laws are not required to make rational sense provided they don't cause too much public dissent or infringe on rights. Public fears, whether unfounded or not, represent a legitimate concern that the Government can address. Gambling and prostitution, for example, are two activities which don't seem to represent a direct danger to society, however public fear of what that they might lead to if legally allowed to occur is strong enough that they are generally illegal and there is relatively little support for changing that.

Back when these practices were first outlawed it was the church that represented the absolute moral authority and the church provided absolute meanings for terms like 'good' and 'bad' and once you know what is 'good and what is 'bad' it seems easy to justify restricting 'bad' things as a 'good' thing. We've since shaken off many of the irrational bases for definitions that religion often leans on but we're still stuck with many socially accepted and supported rules that require an unreasonable absolute morality in order to be considered reasonable by the metric of 'serving the community'.

[Kraco]

Gambling and prostitution, for example, are two activities which don't seem to represent a direct danger to society, however public fear of what that they might lead to if legally allowed to occur is strong enough that they are generally illegal and there is relatively little support for changing that.

I don't know about gambling, but prostitution has been allowed and unallowed in many places over the history, and generally speaking human trade and otherwise forcing women into the trade (pimping) by various means are problems of hard evidence. Still, I agree with you that denying the right to sell yourself or to buy services directly from the prostitute are going beyond the exact scope of that evidence, in my opinion.

The counter argument has generally been that outlawing prostitution will take the activity completely underground, making the position of the women far more dangerous and thus the social disturbance even worse.

However, I don't really see the mafia getting into lolicon doujin distribution...

[David75]

However, I don't really see the mafia getting into lolicon doujin distribution...

If there's a market, and the mafia spots it, you never know...

[Yukimura]

Sorry for the lack of clarity, I have only been talking about America (and to some extent Britain) when mentioning things like the past or society since we were discussing a legal case in America. As to prostitution we came to the same conclusion, that one person making a clear headed choice to sell access to their body to another person making the clear headed choice to purchase it does not seem to harm either party in any objective way. But I would have to disagree with you that the fact that prostitution can be exploiited in a harmful way is the fault of the practice and thus is an acceptable cause for outlawing the practice completely. I would readily admit that prostitution can indirectly harm an individual but I would assert that such harm can only come about if other (American) laws are broken in the process. As far as I know to force or coerce someone over 18 to do something against their will is illegal (in America), thus anyone forcing or coercing women to do something against their will would be guilty of a crime (in America) regardless of if they were being forced to be prostitutes, or participate in a 'human hunt', or even to play board games with little kids.

My overall point is that just because an activity might be involved in some way with activities which are deemed harmful and/or illegal is not be a reasonable excuse for outlawing that activity. As further evidence of this point I would draw attention to other examples of activities which are legal (in America) but can have harmful consequences on society if abused.

Drinking alcohol is perfectly legal in the United States if you are of age. However, driving a vehicle while under the influence of alcohol is illegal and for good reason as there is plenty of evidence that this activity correlates to vehicular fatalities. Smoking is another activity which is permitted if one is of age however it is becoming more and more apparent that it can lead to cancer. When you look at the fact that smoking and drinking, which are strongly linked to causing/expediting death, are legal for anyone of a certain age (in America) but public displays or transactions involving obscenity or prostitution are both illegal in most areas (of America) one must wonder what underlying message the law is sending. One rather simplistic interpretation would be that (in America) the death of members of society is considered less harmful than the existence of people who have experianced or participated in some sort of sexual depravity. If this were true there would be no contradiction in the laws outlawing obscenity as well as activities which might further obscenity.

[Sapphire]

Tokyo bill on 'Virtual' Child Porn Set for March Vote

A lot of mangakas come out of the woodworks to protest this

[Buffalobiian]

Great. What, is Australia a trend-setter now? First it's rationed internet, now this?