Ask John: Is Lolicon Still Legal In America?

Question:
Is lolicon still legal in the U.S.? It seems that recently the topic has become heated on various forums that there was a change in 2005 to the law.

Answer:
Recently in America there’s been quite some furor over the legality of fictional, illustrated depictions of sex involving children. Uncertainty may be reaching a boiling point because of recent federal government attempts to study the accessibility of pornography to minors and Google’s refusal to submit search results that may include personal, private information, to a government inquiry. I’m neither a lawyer nor a specialist on observing judiciary or legal proceedings. In observation of the precision of the question, I’ll avoid injecting subjective opinion. With those stipulations in place I’ll state that as far as I’m aware, Japanese lolicon art is still legal in America on a broad, nationwide scale.

The Child Online Protection Act of 1998 was designed to protect children from being exposed to online pornography. However, in 1998, 1999, 2002, 2003, and 2004 the act was consistently struck down as unconstitutional and “too broad” by federal courts. More recently, the PROTECT act of 2003 (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is designed to, “Revise and strengthen the prohibition on ‘virtual’ child pornography,” and, “Prohibit any obscene materials that depict children” (Dept. of Justice memo). The loosely defined principle that the PROTECT act of 2003 prohibits computer-generated child pornography and illustrated lolicon has led numerous people to assume that lolicon is now illegal in America.

However, examination of the literal PROTECT act, and awareness of the previous judicial bans on enforcement of prohibition of fictional depictions of child sexuality paint a different story. Although the PROTECT act was signed into law by President George W. Bush on April 30, 2003, the 2004 Ashcroft v. American Civil Liberties Union Supreme Court ruling once again determined that a ban on fictional illustrations is unconstitutional. Furthermore, section 504 subsection 1466A of the PROTECT act of 2003 clarifies that “drawing” or “cartoon” visual representations of child sexual abuse must depict a minor involved in sexual activity, be obscene, and lack “serious literary, artistic, political, or scientific value” in order to violate the law. Beside the fact that the US Supreme Court has already determined this section of the PROTECT act to be unconstitutional, imported Japanese lolicon art would still have to be legally proven “obscene” and lacking in “literary, artistic” value in order to be deemed illegal. To the furthest extent of my knowledge, that has never occurred on a federal level in America.

So as far as I’m aware, the national legal status of imported Japanese lolicon art in America has not changed. It’s still legal to sell and own because it is a form of free speech protected by the constitutional First Amendment. The belief that the legal status of lolicon art in America has changed, I suspect, is based on a superficial understanding of the 2003 PROTECT act, without research of its finer points or its execution.