Is Your Anime Illegal? The Trouble With the Miller Test

Amidst memes of the FBI raiding your house for watching a cartoon, there’s a general anxiety about the place of lolicon media in the West. In some states of America, being in possession of ‘obscene’ doujnishi can land you with a prison sentence, as Iowa resident Christopher Handley discovered after he was put on trial for ordering ‘drawings of children being sexually abused’. Neil Gaiman spoke out against Handley’s imprisonment in his onine journal:

You ask, What makes it worth defending? and the only answer I can give is this: Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you’re going to have to stand up for stuff you don’t believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don’t, because prosecutors are humans and bear grudges and fight for re-election, because one person’s obscenity is another person’s art.

Because if you don’t stand up for the stuff you don’t like, when they come for the stuff you do like, you’ve already lost.

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The measure for determining whether a drawing is obscene enough to render you a criminal is already a hazard for any American interested in the more taboo side of Japanese media, and it looks like things are only getting worse. A recent case similar to Handley’s saw another man criminalized for looking at immoral cartoons. But Eychaner’s situation is much more complex: he was a previously convicted pedophile, and in choosing to view lolicon materials on his computer he violated his release terms. He wasn’t permitted to view pictures of children in any form online for the rest of his life. He was also charged with attempted evidence tampering after he had thrown his hard drive down a storm drain: he described his computer as ‘the danger zone’ and claimed he was angry at it.

It’s no surprise that a pedophile would take interest in lolicon images. His indictment will no doubt bolster the views of those who believe that lolicon media actively normalizes and leads to pedophilic attraction and crime, though there is no evidence from the trial that he consumed lolicon manga before coming into possession of real child pornography. Regardless, there’s nothing problematic about convicting a pedophile who blatantly violated his terms of release. But the manner in which Eychaner was tried should set off alarm bells for anyone who cares about the future of Japanese media in America.

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Eychaner searched for lolicon images that are freely and widely available online for the public, and was consequentially charged with attempted acquisition of child pornography. Part of his trial dealt with whether or not the images he searched for could be classed as ‘obscene’, which would affect his sentence. For this, the Virginia court applied the Miller Test, a three part examination designed to evaluate whether or not a piece of media should be considered obscene by a court of law; the same test had been used to convict Handley. A court must find that:

  1. The average person, applying contemporary community standards, would find that the material, taken as a whole, appeals to the prurient interest
  2. The average person, applying contemporary community standards, would find that the material depicts or describes sexual conduct in a patently offensive way
  3. A reasonable person would find, taking the material as a whole, that it lacks serious literary, artistic, political or scientific value

All three parts of the test must be fulfilled for a work to be considered obscene. It must be stressed that this is vastly better than the much earlier the Hicklin Test, which condemned all media that could ‘deprave and corrupt those whose minds are open to such immoral influences’, even if the work was considered to have artistic merit – not far from how many online ‘activist’ types go around decrying lolicon media today, claiming it could encourage people towards pedophilia despite the weight of research that stresses the absence of such a correlation.

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All three aspects of the Miller Test have glaring flaws. When the internet is concerned, the ‘average person’ can’t be assumed at the local level: ‘community standards’ must become globalized, or the faculty of online communication is ignored in its entirety. For much taboo otaku media, the ‘average person’ in the West will always be offended because the work was made to distance its audience from feeling accepted by mainstream society. Lolicon who draw the line between fantasy and reality don’t want the perverse fantasy they explore to be accepted: it only has value as long as it remains unacceptable.

Until now, one major issue with the Miller Test was mitigated against: in the case of United States v. One Book Entitled Ulysses, a legal precedent was set such that the ‘obscenity’ of any extract of a work must be judged through analysis of a work ‘as a whole’. But in the proceedings of Eychaners’s trial, the isolated lolicon images were deemed ‘whole’ even though they were divorced from their larger context. In the age of the internet, it has been asserted that any ‘obscene’ extract posted online can be tried in court as a complete and individual work. That means any panel of any manga, and any clip or screencap of any anime, could land someone in prison if it’s ‘obscene’ enough for a US court of law regardless of its narrative context. How can anyone, ‘average person’ or not, judge the potential artistic merit of a single panel of a manga without considering the larger purpose of what’s depicted?

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Sometimes non-ecchi anime come close to the pornographc: in the second episode of Made in Abyss, we see Riko punished by the overseers of her orphanage by being tied up naked and dangled from the ceiling. The scene flashes for a brief moment, and there’s no sexual agency to be found in the scene – the point of the punishment is shame and dehumanization, and it feeds into Made in Abyss’s larger theme of children being forced to face up against unfairly adult threats and circumstances, violating their childhood innocence and forcing them to act much taller than they are as they delve deeper than human beings are supposed to go.

But if we take the screencap of Riko bound up naked out of the context of the show, we could interpret that a whole scene involving the abuse of an unclothed child takes place. Even without extrapolating, the abuse of Riko on display could easily be seen as sexual from the above screencap alone. The Made in Abyss manga has many more instances of lolicon imagery, and this begs the question: given that their context would be completely ignored, could images like these have qualified as criminally obscene if they were included in what Eychaner searched for?

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When it comes to actual lolicon narratives like Eromanga-sensei, the purpose of sexualized depictions of children is to create a farce around the boundaries of desire. But even if that context was considered, the imagery of such shows is a hard sell for anyone who isn’t interested in such a niche kind of comedy, especially if you’re faced with obscenity charges. A clip of Sagira and Elf-sama trying to remove the protagonist’s pants in order to study the shape of his penis would probably pass for ‘sexual conduct’ in most courts of law. The ‘average person’ would absolutely find this scene immoral. But who gets to decide whether it has ‘artistic merit’? As Gaiman stressed, ‘one person’s obscenity is another person’s art’. The difference in tastes and tolerances for taboos is what makes art interesting, and eliminating this in favour of an idealized ‘average’ opinion on indecency arguably removes the concept of art from the courtroom altogether.

More often than not, critics who are morally repelled by a work actively distract themselves from any ‘artistic’ aspects it has. Among those who want Eromanga-sensei removed from Crunchyroll’s streaming platform, you’ll rarely see any discussion of the quality of the comedy, the VA performances or the story of taboo passion that’s being told. Many who cling to an idea of ‘artistic merit’ have a monolithic view of what is ‘art’ and what is not. ‘Art’ is Macbeth, Mozart and the Mona Lisa; ‘art’ is not bawdy comedies, no matter how much effort goes into putting them together. It’s bad enough when this snootiness invades a discussion of ecchi shows, but it’s troubling that it could also be a deciding factor in the conviction of someone who viewed a cartoon. In some parts of America, those who determine ‘artistic merit’ for courts of law could still hold the belief that animation is for children, and can never be real ‘art’ merely by the virtue of its medium.

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Of course, many otaku seek to have their media deemed lacking in value by ‘normies’: it validates their separation from the mainstream. In the third episode of OreImo, Kirino’s father becomes aware of her obsession for siscon eroge, and calls her hobby ‘worthless’. He also parrots the moral panic of mainstream media outlets, complaining that eroge will always have a negative effect on the young and impressionable, paralleling the concern that the now-defunct Hicklin Test was born from. Kirono’s friend Ayase voices similar outrage when she too becomes aware of her passion for eroge.

Both characters are reasoned with, to an extent, because of the positive effects of Kirino’s otaku hobby: the unique friends she has made, and the fact she still excels at every part of her ‘normal’ life, demonstrating that she’s drawn a firm line between the worlds of the real and the virtual. Unfortunately, such reasoning wouldn’t accomplish anything in a court of law when taboo otaku media must always be evaluated by people who are the opposite of its target audience.

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We may be approaching a future where streaming services feel pressured to cut back on providing access to sexually explicit anime because US courts could apply the Miller Test and find clips, screencaps or whole shows ‘obscene’ and thus criminal: we’ve already seen a rape scene in Sword Art Online censored by Aniplex, giving Crunchyroll viewers only a partial SAO experience. The more loose interpretations of the Miller clauses become, the more publishers and providers will be afraid of presenting many Japanese works as they were originally created.

For individuals arrested for possessing or viewing drawings that Western courts deem obscene, the Comic Book Legal Defense Fund exists as a bastion for free speech and the freedom to consume media that didn’t harm anyone in its creation and won’t harm anyone in its publication. They fight for everything from lolicon manga to LGBT+ childrens literature, because they understand that the law is a blunt instrument, and acknowledge that perverse media must be protected with the same passion that we use to keep marginalized voices from having their representation in media censored. By aiding the CBLDF’s work, we can help make the world accept that no matter what a piece of media depicts, if it can’t be proven to cause harm, it shouldn’t land someone in prison.

Humble Bundle is currently running a Kondasha Comics bundle in aid of the CBLDF: if you don’t want a world where you could possibly be incriminated by your anime screencaps, I recommend checking it out.

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Sorry for the hiatus – had a bout of various illnesses, but I’m finally starting to feel well enough to write again. Thank you so much to my Patrons for continuing to support the site, especially new supporter Maddening Ghost!

The internet's finest Loliconnoisseur

9 thoughts on “Is Your Anime Illegal? The Trouble With the Miller Test

  1. Oh boy! I get name dropped as a new supporter on the article about lolicon media. I laugh but this is the exact type of articles that got me interested of this website to begin with.

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  2. Really interesting post, although the Miller Test doesn’t automatically make something illegal (I’m a law student and I recently took a class on the first amendment). A court deciding something is obscene only means that it can be banned or regulated, not that it is banned. Thankfully the Eychaner ruling about being able to deem individual images as the “whole” is just a district court case, meaning it’s not binding on any other courts.

    Liked by 1 person

  3. Is a very good article and i 100% agree with you, defending art, even the one you don’t like, is the only way to fight against censorship often disguised as a tool to silence who don’t think how the masses should think by someone with a political agenda.
    Dan Kanemitsu, a translator who live in Japan, do good reportages on these matters too and the increasing in censorship in these months before the 2020 olympics (just another excuse to censor stuff exploit foreign opinions where japanese people don’t care and is not an issue at all).

    (Typo fixed).

    Liked by 1 person

  4. Thanks for writing such a good article on this topic, I totally agree with you on standing up for something even if you don’t like it, because as soon as you start censoring stuff, it’s a slippery slope.

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  5. Probably you already knew but there is another menace around, the worthless UN this time they are trying worldwide to press Japan to censor their own manga since they failed to force the country to follow their agenda twice in a row.
    They want to give to fake characters human rights and equate them to real people, yes, they use this bait to force the government and restrict the freedom of expression of mangakas. Hope Japan don’t fall for this new ridiculous attempt.

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  6. I heard someone say: After fapping I feel like a Werewolf – naked, confused and in horror what I’ve just done. I can really relate to this and I think I’m not alone in that.
    At some point a few years ago during a particuilarly long period of… real life inactivity I experienced difficulty to, well… get the deed done with the “normal stuff”. The more this went on the worse it got. Basically NTR was my new baseline.
    This went back to normal levels when I stopped myself from doing it every day.
    But the experience for me has been that it really only affects alone time to not take 45 minutes. This never affected relationships I had or have and I’ve never had any issues, No fantasies to break some girls mind and let her be a dick slave for the rest of her life. It’s a really self contained thing and I would never get any ideas for illegal behaviour from that material if I didn’t already go in with those ideas.
    Just because you read Loli Porn you’re not a pedo, most Doujin girls are made to look “sexy” no matter the age. I’m not a lingering rapist cause I kind of enjoyed NTR for a whole while.
    I can kind of see maybe restricting it for already established offenders but even then… I mean it’s literally hurting no one. I would be really interested in an actual good study researching how Loli affects a diagnosed pedophile.
    But until I don’t see proof this is actually hurting someone – it’s a kind of fantasy where no actual kids are raped, nothing illegal is beeing done to anyone to produce the work. Forbidding that kind of material outright borders thought crime territory to me.

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