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.