On the use of public office to suppress the display and sale of artistic works

Weeks ago, I heard about a controversy in Australia having to do with the sale of certain manga in the Sydney branch of Kinokuniya, a Japanese bookstore chain with locations around the world. Last July, South Australian state legislator Connie Bonaros made a complaint regarding volumes sold there, including such titles as Eromanga-sensei, No Game No Life, Sword Art Online, and Inside Mari, on the grounds that they violated Australian law regulating certain types of sexual artistic depictions. The exchange of letters between Bonaros and Kinokuniya officer Keijiro Mori can be found in the link above, but the gist seems to be that Bonaros thought some of the anime-styled girls in works that include sexual content looked like minors and came to the conclusion that their sale in Australia constituted a violation of the law.

If we talk about how horrible this is and have it banned from stores, people will definitely stop reading it! That has always, always worked.

I feel bad for Australian manga and light novel readers who were into those series, and especially for fans of No Game No Life, a few volumes of which received an outright sale/importation ban. It’s worth mentioning that we’re not even talking about some hentai doujins and manga you might find in the seedier shops in Akihabara; most of the affected series are massively popular and none are pornographic as far as I understand. It also seems weird that a South Australian state legislator can have any say at all over what books can be sold in Sydney, which is located not in South Australia but in New South Wales. That sounds to me something like a Virginia state senator getting books removed from a New York bookstore, which would be unthinkable here in the US.

But I’m not an expert in Australian law. In fact, I don’t really know anything about it except that the Australian constitution doesn’t contain an explicit protection for freedom of speech or expression. Since Bonaros is an Australian lawyer and I’m an American one, I’ll defer to her understanding of her own country’s law. I just hope fans and other artists in Australia can find a way to gain a stronger voice in politics.

All that said, I think the victory won by Bonaros has to be examined more closely. It raises a question that’s relevant to every fan of anime, manga, video games, literature, and art in general living in any country on Earth. That is: how far should a public official be able to use the power and influence afforded by their office to suppress the display and sale of an artistic work? Because that is apparently what Bonaros did. No legislation seems to have been proposed; no evidence was brought forward to show that the contents of the listed works actually violated Australian law (or if it was raised, it wasn’t mentioned in the reports I found.) And there’s certainly been no solid evidence brought forward that said works have a harmful effect on their readers or on society in general. It seems that Bonaros simply saw some manga that rubbed her the wrong way, used her platform as a legislator to complain about it, and successfully pressured Kinokuniya into removing it.

I can’t pretend that this incident in Australia doesn’t affect fans of manga, anime, or related works here in the States either. Because Bonaros also requested a list of other countries in which Kinokuniya still sells No Game No Life and the other titles she objects to, presumably including its American branches, and pressured the company to ban their sale globally.1 As a result, it’s now undoubtedly an issue for us Americans as well. And since she’s made it an issue for us, let’s have a look at US law to see whether or how such an incident might play out here.

Unlike my last couple of posts on this general subject, this time around we’re specifically concerned with the First Amendment. Here’s the original text in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Pretty short considering how much has been said about it since it was ratified in 1791. And we’re only concerned here with the middle clause, and specifically with this statement: Congress shall make no lawabridging the freedom of speech.

It’s understood that artistic expression counts as “speech”, and this naturally includes manga (and visual novels, and drawings, etc.) However, that doesn’t mean these are all entirely safe from regulation. Congress has made laws abridging the freedom of speech since, but these were passed when the courts carved exceptions out of that guaranteed protection. An example of such an exception is found in the Supreme Court case Brandenburg v. Ohio2 (note: citations provided in the footnotes in case you want to look them up) in which the Court determined that the government could not regulate speech on the basis of violent or incendiary content unless it was 1) “directed to inciting or producing imminent lawless action,” and 2) “likely to incite or produce such action.”

So it’s unconstitutional to arrest someone for throwing out extremist political views, for example, unless they’re actually stirring up a group to do some immediate violence or lawbreaking. It’s a very limited restriction but an important one — essentially, the Court has said that the government shouldn’t have the power to restrict this kind of speech unless it’s about to cause actual harm.

Artistic expression has also been restricted in limited ways and on similar grounds. Certain kinds of expressions that involve causing harm to others, for example, are rightly recognized as falling outside of the First Amendment’s protection. When the artistic expression in question doesn’t involve such harm, however — for example, when actors are depicted being harmed through the use of effects and studio tricks, or the expression consists of drawing or sculpture or some similar form — the standard for regulating the expression is far higher. Even if an artistic expression seems revolting, as long as it’s not found to be obscene or otherwise outside the protection of the First Amendment, it can’t be banned or suppressed through government action.

And the obscenity standard set by the Supreme Court in Miller v. California is extremely difficult to meet. Attempts at getting around this test through other sorts of official action have usually failed, as in the case of Bery v. New York,3 in which the Second Circuit Court of Appeals struck down a government regulation requiring artists to be officially licensed to sell their work on public streets. Even if a regulation isn’t obviously intended to restrict freedom of expression, if it has that effect, it’s subject to the First Amendment and likely to be struck down in the same way.

However, let’s say that “official” government action isn’t being taken. What if, as in South Australia, some legislator stands up and simply talks about how bad some work of fiction is, how it’s degrading the morals of the people by its very existence, and how for those reasons Amazon should stop selling it? What if people petition Amazon on that basis and the company gives into public pressure and removes said work? In other words: can a public official legally use the power and influence of their office to skirt the First Amendment and have an artistic work suppressed without “making a law”?

Again, this is no hypothetical, because we’ve already seen it happen. I brought up several examples of such attempts at content-based regulation in another previous post. The most relevant here is the string of attacks on video games made by Congress in the early 90s, most famously against the Sega CD game Night Trap. Looking back, it seems strange that this FMV game was ever at the center of a controversy. Its contents are pretty tame, but some legislators spoke against it anyway, most notably former Senator Joe Lieberman, for containing gratuitous violence and lewdness. Following a congressional hearing in 1993 on the subject of video game violence (during which Lieberman admitted to never having actually played Night Trap) the game was pulled from distribution by major distributors and later pulled from the market altogether.

If it hadn’t been for that controversy, though, this game wouldn’t have gotten a rerelease/remaster on Steam, no way in hell.

The facts that the Sega CD was a marketing failure, and that by most accounts Night Trap was a lousy game, might have something to do with its pulling from distribution, but the influence of interest groups driven at least in part by public condemnation has to be considered. In my view, the use of a congressional hearing in this way taints the market and is an example of government overreach into the regulation of art. Lieberman’s view of Night Trap doesn’t seem very different from Bonaros’ view of No Game No Life and the rest of the manga on her list: both came to conclusions about the meanings and effects of the works seemingly without supporting evidence, and both ended up having an effect on the distribution of the work (in Bonaros’ case a much more direct and obvious effect, though.)

It seems this kind of government interference in art is hard to prevent even in the US, however; it’s happened so many times already (see also the Hays Code and the Parents Music Resource Center.) And there’s no reason to think it won’t happen again. At the moment, the US is going through a shitstorm for lack of a better term, or at least I can’t think of a better one to use, so people aren’t thinking too much about how music or video games are going to turn fans into degenerates or criminals. But that won’t last forever. One day when things are less chaotic, we’ll have another moral panic in which art is attacked as a way to avoid actually addressing societal problems. And since it doesn’t seem to be considered a violation of the First Amendment for politicians to use their influence to try to have works regulated or removed from sale, maybe the better question to ask at that point is: “Should they be allowed to do so?”

Let’s just do this again, why not.

Of course, my answer is “no.” The First Amendment’s guarantee of free expression loses some of its teeth when politicians are able to use the resources and influence of office to essentially get around it. Yet I don’t see a solution to that other than maintaining a culture of open and free expression. That’s a culture that has been under attack recently, especially with regard to anime, manga, and anime/manga-influenced games. We just have to remain vigilant as usual, calling out hypocrisy and scapegoating when we see it, and always in a civil but forceful manner.

I’ve lived in a country where the government had near-complete control over art and the press and where the dominant culture supported that control, and I can tell you it’s not fun. Many of the people who think they want that kind of power to be exerted against expression they don’t like here in the US might be in for an unpleasant surprise when they find works they like on the chopping block. But by then, if we ever get to the point where the First Amendment is so eroded, it will be too late to do anything about it.

So there’s my dire warning as usual. And as usual, I’m interested in other opinions. Do you have a different angle on these issues? Do you think Bonaros was right and justified in what she did? If you do, I don’t think we’ll find much common ground, but it’s still worth talking about. Maybe there were some important facts in that case that were glossed over or that I missed. Or maybe my own views on the issue as an American are considered weird in other countries. I know for a fact that’s the case, but that’s also part of why I came back here after all. 𒀭

1 Thankfully, Kinokuniya’s response to this request was: “In terms of our action globally, wherever our stores are situated we respect local law and culture, and make ordering decisions respectively and accordingly.” Which sounds like a diplomatic way of saying “mind your own damn business.”

2 395 US 444 (1969).

3 97 F.3d 689 (2d Cir. 1996), cert. denied, 117 S.Ct. 2408 (1997). There’s an interesting note about the case here (a note being an article written by a law student in an academic journal — I wrote a note myself, but it was a piece of shit and rightly didn’t get published.) A good read if you’re interested in the subject.

On anime, games, and obscenity

Listen, sorry.  I had planned to edit and post my first deep reads piece today, but I’m pushing that back a bit because I’ve been reading a lot about proposed “anime bans”, essentially restrictions of work based mostly on their sexual content, whether the sexual nature of that content is actual or perceived.  All this reading put me into lawyer mode, and now I can’t bring myself to write about anything else before I’ve addressed these controversies to my satisfaction and hopefully to the readers’ as well.  Because while there is truth in a lot of the stories going around, some of them may be misleading, causing unnecessary misunderstanding and anxiety.  I’m not the top legal scholar in all the land, not even close, but I thought I’d take the opportunity to clear up a few basic questions about the American legal concept of obscenity as it applies to the shows we watch and the games we play.  (As much as I’d like to, I can’t address questions about the legal codes or traditions of Japan or any other state because I don’t know them nearly well enough.)

Fair warning: while nothing on this site falls into the 18+ category, this post does obviously deal with adult content.  So if that’s not your thing, you might want to skip it and check out the next post I put out that probably won’t have to do with anime titties, etc. if my schedule remains as it is now.  Also, while I am an attorney, none of what’s in this post (or on this site in general) is intended to be legal advice or to create an attorney-client relationship with anyone at all.  Finally, most of the legal analysis here is pretty speculative (i.e. I had to pull most of it out of my ass because a lot of it involves issues that haven’t yet been resolved by the courts) so you can take what I write with however much salt you like.  Sorry for the long disclaimer, but I have to put it there.  Now on to the real fun.

supreme court bldg

This is a serious post about law, but there will probably be a few anime titties as well, all included within the appropriate context of course.

With the 2020 Tokyo Olympics coming up, all the normal, well-adjusted people in my country and other parts of the West have started paying more attention to Japan.  And they’ve seemingly just learned something the otaku/weeb set have known for decades: that Japan produces ten thousand metric tons of drawn pornography per year in the form of manga and doujins that are sold online and at Comiket, and that even some of their anime and video games contain lewd or borderline lewd content.

Apparently some of these people have a problem with this.  Every time a game is slated to be ported to the West and it might contain questionable content, the battles begin on Twitter and Reddit and everywhere else over whether they should be ported over intact or censored.  There’s even been talk about the United Nations attempting to restrict content in anime and related media through Article 2(c) of its Optional Protocol to the Convention of the Rights of the Child.  While the article seems to be well-meaning — it’s prohibiting the sort of illicit, immoral pornography that nearly everyone already agrees should be prohibited — it’s extremely broad in its language.  And if read broadly enough, it would also place some anime and game content into a legal gray area at best.  The Optional Protocol doesn’t single out anime or anime-styled games, but the connection is easy to make: both feature a lot of young-looking female characters, not to mention the 800 year-old fox spirit goddesses who sure as hell don’t look 800 years old.  Thousands upon thousands of people read these posts and articles and rushed to buy, download, and torrent Fate/kaleid liner Prisma Illya and The Helpful Fox Senko-san before the all-powerful UN forces in their black helicopters destroyed every last copy.

By order of the United Nations, all cute magical girl gifs will be hereby confiscated

These stories also mentioned that the United States, Japan, and Austria, while generally supportive of the protocol’s goals, refused to sign in part because they felt Article 2(c) was overbroad and would unduly restrict freedom of speech.  Not that it really mattered all that much — even if the US, Japan, and Austria had been pressured to sign this Optional Protocol, none of them would have been bound to actually do anything to follow up on their commitments.  Protocols of this type are less legally binding than an agreement between two drunk guys scrawled on a bar napkin.  And then the napkin got used as a coaster for a pint of beer, and the ring it created made parts of the agreement completely illegible.  That document would literally have more binding legal power than a protocol to a UN convention.

Still, it’s worth considering whether and how your favorite lewd anime or game series could one day be legally banned from streaming services and online stores.  As everyone who’s had an internet argument about free speech already knows, speech is generally protected from government prohibition or interference by the First Amendment to the US Constitution.  However, not all speech is protected.  Making a credible threat of bodily harm is an exercise of speech, for instance, but it falls into one of the court-created exceptions to constitutional protection of speech.  Another exception, the one we’re concerned with in this case, is obscenity.

The legal concept of obscenity has been around for a long time and typically applies to images, writings, and other works that are generally considered lewd, disgusting, or distasteful.  For the purpose of maintaining public morality, works that are deemed obscene also fall outside First Amendment protection and can be prohibited by law.  However, the definition of obscenity in the US has narrowed over time to the point that it now only applies to a few very clearly harmful types of material.  For an anime series or game to be found obscene, therefore, it would have to be pretty god damn immoral and probably demonstrably harmful somehow, or at least a court would have to think so.

Good luck explaining the concept of Nekopara to the court

But how do we determine what’s obscene and what isn’t?  Thankfully, the Supreme Court in the 1973 case Miller v. California provided us with an extremely problematic and vague legal test to find and separate out the obscene works.  Here’s the infamous three-pronged Miller test as set out by Chief Justice Warren Burger:

1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (meaning entirely sexual) interest;

2) whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and

3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

We don’t even have to read past that first prong to realize the Miller test doesn’t work anymore.  The idea behind it made some sense in 1973 — different places in the US have different standards of what constitutes offensively sexual material.  So, for example, the very same art installation displayed in Greenwich Village, NYC and then in Mobile, Alabama might shift from being not obscene to being obscene because the standards and norms in the locality surrounding that art have changed.  Today, however, the internet has turned the country, and to some extent the entire world, into a single “locality” in the sense that any content, no matter where it was created, can be accessed anywhere.  For this reason, the courts must now effectively use a national rather than a local standard in some contexts, even though the majority in Miller explicitly rejected the use of a national standard for obscenity.

This works in the fans’ favor, because a national standard is necessarily going to be slacker than a local standard for what’s deemed offensive.  And while that second prong is a bit vague (what exactly does “sexual content” entail?  How broadly should that be read if the state law defining it is vague?), the third prong of the test is extremely difficult to clear: almost every work created has “serious literary, artistic, political, or scientific value” of some kind.  Using the current standard, therefore, almost all anime and game content should pass the Miller test, at the very least on the basis that it contains serious artistic value.

Admittedly, there is a problem for the fans hidden in the language of the test.  Notice who’s applying these community standards: “the average person.”  Who the hell is that?  What’s an average person?  The legal answer is that it’s a kind of meld of a bunch of people picked off the street at random. Granted, that is a bullshit legal fiction made up for the sake of convenience. However, if an obscenity case ends up going to trial, guess who determines what that “average person” thinks? The jury, which is quite literally a bunch of people picked off the street at random.  And that’s at least a little scary, because you never really know what you’ll get with a jury.  On the other hand, the Supreme Court later found that the third prong requires a higher standard of review than that, which means greater protection for the speech in question.  Thank God for that third prong.

Some people think Kill la Kill is just fanservice, and some people think it’s a masterpiece. But what would the “average person” think?

I don’t mean to be an alarmist here. The free speech clause of the First Amendment hasn’t been eroded in the way certain other clauses to other amendments have. Freedom of speech is still one of the most closely guarded and strongest constitutional protections we have, and it’s backed up by a lot of precedent following Miller.  The fact that the internet is so damn full of weird pornography and screeds about how the government is run by evil lizard aliens is proof enough that we’re free to express ourselves in most any way we want.

However, that doesn’t mean the clause won’t be eroded in the future.  The religious right is still a politically powerful force in the United States, and they’ve shown their willingness to try to shut up speech that they consider lewd or blasphemous.  Remember the petition to Netflix to remove the “satanist” Amazon series Good Omens?  Not to mention the less stupid but still very stupid campaigns against the Harry Potter and Pokemon series in the late 90s.  Considering their great (and not entirely unsuccessful) efforts to break down the wall of separation between church and state also contained in the First Amendment, there’s no reason to think they have any special respect for the free speech clause.  Parts of the leftist and progressive movements are also trying to shame writers, developers, artists, and publishers into “cleaning up” their work and altering it to suit their moral sensibilities.1  While these groups are not generally pushing for government censorship, they are trying to create a chilling effect on art, and it’s not a major leap from that to calling for the imposition of legal restrictions on content.

So it would be wrong to assume things will simply continue as they always have.  There’s a reason groups like the American Civil Liberties Union and the Comic Book Legal Defense Fund still exist — it’s important to remain vigilant in protecting our rights and to not take them for granted.   Also, always keep in mind that “_ should be banned because I think it’s gross” is not a legitimate argument in favor of banning or censoring something.  Some people seem to think it is for the frequency they use it, but it most certainly isn’t.  Prove the material you’re trying to have banned fails the Miller test and have it found obscene by a court.  Nobody is arguing that genuinely harmful material shouldn’t be found obscene if it deserves to be placed in that category.2  If you can’t manage to get that ruling, however, all we’re talking about is a difference in taste.  And as the ancient Romans said: “In matters of taste, there can be no dispute.”

And as Senran Kagura producer Kenichiro Takaki said: Tits are life, ass is hometown.

I guess my point is that your lewd anime girls probably aren’t going anywhere, at least if you live in the US, but also that we shouldn’t grow complacent.  I’m also assuming that Japan won’t pass any serious restrictions on its own content, based partly on their answer to the UN’s Optional Protocol and partly on the fact that lewd anime girls are probably one of their biggest exports, and why risk that for basically no benefit in return?  I could be wrong in this assumption, but again, I’ll leave that issue to those who actually know something about Japanese law and politics.

So that was my combination legal treatise/angry rant.  I hope it was entertaining and/or enlightening.  If you have a question, a differing opinion, or a burning desire to call me insane or an idiot for what I’ve written, please post a comment below and we can get a discussion going. 𒀭

 

1 Full disclosure, as usual: I’m pretty much on the left myself, which is why it breaks my heart when other progressives rail against the shows and games I like as harmful or regressive just because they don’t fit their own views of political and social orthodoxy.  I’ve gone on about this before, so I’ll spare the reader here.

2 Edit: I shouldn’t say nobody is arguing this, because there are people who argue that the concept of obscenity should be scrapped entirely, allowing for every kind of sexual expression aside from those harmful types that are already banned by law. In fact, I like that idea myself. However, in the current social climate, I don’t think it’s realistic to expect that we can do any better than the Miller approach to obscenity.