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It was a short article in the March 12 edition of the Washington Post-only three paragraphs long, back in section C on page 3, along with a series of similar snippets about recent criminal activity in the region. It was the kind of story easily ignored by some readers, yet one raising complex issues about free speech and thought, criminal sentencing and, indeed, pop-culture media products. The story reported that “Dwight Whorley, 52, was the first person convicted under a 2003 federal law that criminalizes the production or distribution of drawings or cartoons showing the sexual abuse of children.” Whorley, of Richmond, Va., was sentenced to 20 years in federal prison for receiving “Japanese anime cartoons depicting minors engaged in sex with adults.” He was also convicted on other child pornography charges, but the anime charges could have independently been the basis for his 20-year sentence. That’s right. Twenty years hard time for looking at cartoons-fantasy images of fictional children engaged in simulated sex. The statute in question, 18 U.S.C. 1466A, makes it illegal to distribute, receive or possess with the intent to distribute “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting” that is obscene. It was adopted in response to the 2002 U.S. Supreme Court opinion in Ashcroft v. Free Speech Coalition, striking down a 1996 measure that criminalized a visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct.” In August 2005, U.S. District Court Judge Henry E. Hudson rejected Whorley’s challenge to the new law. Hudson held that “simulated images of children engaged in sexually explicit conduct” can be prohibited if they fit the 33-year-old Supreme Court test for obscenity set forth in Miller v. California. Under the � 1466A charges against Whorley, it’s important to remember, no real people were harmed for his thought crime, no matter how reprehensible most of us would likely find his perverse fantasies. So how did it get to this point? And what does it portend for the future? First consider the disparity between the 20-year sentence Whorley received for looking at cartoons (which, again, would have stood independent of the other charges) and some sentences recently meted out for sexual offenses involving real human victims. A 36-year-old high school teacher in Inverness, Fla., carried on an affair with a 15-year-old girl. She was sentenced to two years of house arrest and eight years’ probation. In Santa Ana, Calif., a 29-year-old English teacher pleaded guilty to 29 counts of improper sexual contact with two students between the ages of 11 and 13. The parents of the boys labeled her a “pedophile and sexual predator.” She was sentenced to six years in prison. These cases involve real sex and real children rather than the fictional depictions that, alone, could have landed Whorley in federal prison. Yet, in every instance, the sentence was far less than Whorley’s, whose � 1466A transgressions took place only in his mind. What about ‘The Aristocrats’? All of this raises an interesting question for testing the tension between media products of popular culture that push the boundaries of offensiveness and federal laws targeting sexual images. The question: Is the 2005 movie The Aristocrats protected by the First Amendment or does it constitute virtual child pornography and obscenity? For those who have yet to see it in theaters or on DVD, The Aristocrats is a comedy-documentary in which some well-known comics give their own nasty takes on the dirtiest joke ever told involving a father, mother, son, daughter and dog. As Ray Richmond wrote in the Hollywood Reporter, the movie “has no sex or violence but serves up graphic descriptions of incest, bestiality, urination, defecation, vomiting, brutal rape, child sexual abuse and every depraved, unspeakable and vile act imaginable. This is, perhaps without question, the singularly most profane film ever made. And it’s hilarious.” For instance, here’s part of the joke as told by Gilbert Gottfried. We have substantially sanitized his rendition for this publication, but we doubt that much of its meaning will be lost in translation: “The son masturbates his father. At the same time, the daughter has her hand placed inside a body cavity of the father. The son meanwhile is licking a certain orifice of the daughter, while the family dog is relieving itself on the son’s face.” Compare this description of a completely fictitious incident with the similarly fictional cartoon images that Whorley downloaded. The U.S. attorney’s office said, in a news release, that the Japanese anime cartoons “graphically depicted prepubescent female children being forced to engage in genital-genital and oral-genital intercourse with adult males.” Does the difference in levels of protection boil down to one of depiction in words v. depiction in visual images? Are images more powerful than words? Under the law in Whorley’s case, it makes no difference whether those images are actual photographs of real children or contrived drawings of cartoon ones. If the anime cartoons are obscene, then surely Gottfried’s telling of the joke in The Aristocrats is obscene. Yet in both cases, no real children are abused or harmed in any way. The only harm is mere offense to our standards of decency. In fact, to the extent that some viewers find The Aristocrats to be entertaining, one can reasonably argue that it has serious literary value and thus is not obscene under the Miller test. Ultimately, the case of Whorley raises issues more complex than the brief article in the Washington Post ever let on. Clay Calvert and Robert D. Richards are professors of communications and law and co-directors of the Pennsylvania Center for the First Amendment at the Pennsylvania State University in University Park, Pa.

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