ComputerForensicsDigest.com

Over the weekend, the Anchorage Daily News reported that Alaska legislators are considering amending the state's child pornography law to include sexually-explicit drawings and cartoons of children. Despite some constitutional concerns raised by free speech activists, the idea has the support of Alaska House Judiciary Committee chair Jay Ramras (R-Fairbanks).

The most common type of sexually-explicit cartoons is known as hentai, a word that commonly refers to images of Japanese origin. Hentai is a subset of the broader categories of anime (Japanese animation) and manga (Japanese print cartoons), and thanks in large part to the Internet, has grown increasingly popular in Western countries.

The Alaskan proposal is modeled after a federal law, the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ("PROTECT"), which makes it illegal to possess or distribute "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that ... depicts a minor engaging in sexually explicit conduct." Such depiction must also be "obscene" and lack "serious literary, artistic, political, or scientific value."

The PROTECT Act was passed in response to the U.S. Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), in which the Court held that virtual child pornography (in which no image of an actual child is used) is protected free speech. In Ashcroft, the Court concluded that an earlier law, the Child Pornography Prevention Act (CPPA), was so broad that it could arguably criminalize works as well-known as "Romeo and Juliet" or "American Beauty."

Late last year, in a 2-1 decision, the Fourth Circuit distinguished the PROTECT Act from the CPPA by noting that the newer legislation bans the depiction of minors engaged in sexually explicit conduct only when such depictions are obscene. United States v. Whorley, 550 F.3d 326 (4th Cir. 2008). As a result, the Court upheld a child pornography conviction of Dwight Whorley based in part on 20 images of hentai that he had downloaded to a public computer at the Virginia Employment Commission. A motion for an en banc hearing by the full Fourth Circuit was denied last summer. The dissenting judge in the original appellate decision, Roger Gregory, urged Whorley to file a petition for certiorari with the U.S. Supreme Court, but there is no indication that he did so.

So far, Alaskan legislators are merely discussing the possibility of amending state law to match the federal child pornography statute. It is unlikely, however, that it will be the last state to consider doing so.