PROTECT Act of 2003

The PROTECT Act of 2003 (Pub.L. 108–21, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children.[1][2] "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today".

The PROTECT Act incorporates the Truth in Domain Names Act (TDNA) of 2003 (originally two separate Bills, submitted by Senator Orrin Hatch and Congressman Mike Pence), codified at 18 U.S.C. § 2252(B)(b).[3]

Overview

The law has the following effects:[1][4]

The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition has filed a lawsuit against the United States Department of Justice claiming the 2257 Regulations are unconstitutional.

The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography.[1][2][4] Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996 had been ruled unconstitutional by the U.S. Supreme Court in its 2002 decision, Ashcroft v. Free Speech Coalition.

The act was signed into law by President George W. Bush on April 30, 2003.[11]

The PROTECT Act allows sex offenders to be sentenced to a lifetime term of federal supervised release. Although targeted most directly at sex offenders, it the PROTECT Act affects all federal supervised releasees. The PROTECT Act removed the "aggregation requirement" of 18 U.S.C. § 3583(e)(3) and 18 U.S.C. § 3583(h), which had limited the net amount of imprisonment that a sentencing court could impose for supervised release violations.[12]

Application of the Act

Appellate Court and Supreme Court Challenge

On April 6, 2006, in United States v. Williams, the Eleventh Circuit Court of Appeals ruled that one component of the PROTECT Act, the "pandering provision" codified at 18 U.S.C. § 2252A(a)(3)(B) of the United States Code, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.

The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.

The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.[13]

Convictions

The first conviction of a person found to have violated the sections of the act relating to virtual child pornography was Dwight Whorley of Virginia, who used computers at the Virginia Employment Commission to download "Japanese anime style cartoons of children engaged in explicit sexual conduct with adults"[14] alleged to depict “children engaged in explicit sexual conduct with adults.” He was charged with 19 counts of “knowingly receiving” child pornography for printing out two cartoons and viewing others.[15] His conviction was upheld in a 2-1 panel decision of the Fourth Circuit Court of Appeals in December 2008.[14] This decision was consistent with the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition in which the Supreme Court held that virtual child pornography was protected free speech, provided that the virtual depictions are not obscene. Obscenity, including obscene depictions of children, either virtual or real, is unprotected speech. (Whorley was also previously convicted of offenses in connection with pornographic depictions of real children.)

Also in 2008, Christopher Handley, a "prolific collector” of manga,[16] pleaded guilty to charges related to the PROTECT Act, in exchange for a six-month plea deal, five years of probation, and forfeiture of his collection of manga and anime that had been seized by police.[15] He was facing a maximum sentence of up to twenty years. While not convicted by a jury, he was the first person charged under the PROTECT Act for the lone act of possessing art deemed obscene, in the form of seven manga graphic novels ordered from Japan. United States district court Judge James E. Gritzner ruled that two parts of the PROTECT Act criminalizing "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting" were unconstitutional. Handley still faces an obscenity charge.[17] Both prosecutors and defense attorneys noted that the plea deal was due to the high risk of a constitutional challenge, and the federal government agreed that Handley would not be required to register as a sex offender.

PROTECT act and Manga

Anime or manga that portray children engaged in sexual activities has been included in the PROTECT Act's prohibitions in several jurisdictions.[18] According to the Comic Book Legal Defense Fund,[15] the PROTECT Act can be used to prosecute people who obtain Manga. According to Adler, Delohery, and Charles Brownstein,[19] "the current law raises concerns for creators, publishers, and collectors of various forms of entertainment (including, but not limited to, comics/manga, video games, and fine art)." Bell argues that the PROTECT act should be reexamined by Congress because of first amendment issues.[20]

See also

References

  1. 1 2 3 "Fact Sheet PROTECT Act". Department of Justice. April 30, 2003.
  2. 1 2 3 "Full Text of S.151 - PROTECT Act (Enrolled as Agreed to or Passed by Both House and Senate)". Library of Congress.
  3. ↑ Jane K. Winn and Benjamin Wright (2000). The law of electronic commerce. 2008–02 Supp. (4th ed.). Aspen Publishers Online. pp. 11–21. ISBN 9780735516489.
  4. 1 2 "Track.us. S. 151--108th Congress (2003): Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003". GovTrack.us (database of federal legislation). Retrieved 2008-09-01.
  5. ↑ "Suzanne Gloria Lyall". Charley Project. Retrieved 2017-02-14.
  6. ↑ Chaninat & Leeds Sex Crimes in Thailand Part 1: US Sex Laws Abroad. Thailand Law Forum, September 2009
  7. ↑ U.S. Department of State https://travel.state.gov/content/passports/en/emergencies/arrest/criminalpenalties.html
  8. ↑ United States Code, Title 18 Chapter 117, 18 USC Sec. 2423, Subsections (c) and (f)
  9. ↑ United States Code, Title 18 Chapter 109A, 18 USC Sec. 2243, Subsection (a)
  10. ↑ Jury Instruction -- Affecting Interstate or Foreign Commerce
  11. ↑ "President Signs PROTECT Act: President's Remarks Upon Signing of S. 151, the Protect Act". , White House Office of the Press Secretary. April 30, 2003.
  12. ↑ Morris (February 2006). "FYI: Supervised Release and How the PROTECT Act Changed Supervised Release". Federal sentencing reporter. 18 (3): 182–186.
  13. ↑ "Decision in US v. Williams" (PDF). Retrieved 2008-05-19.
  14. 1 2 "Decision in US v. Whorley" (PDF). Retrieved 2010-01-16.
  15. 1 2 3 Comic Book Legal Defense Fund, Criminal Prosecutions of Manga (accessed 7 Jan. 2017)
  16. ↑ David Kravets, "U.S. Manga Obscenity Conviction Roils Comics World", Wired, May 28, 2009 (accessed 7 January 2017).
  17. ↑ David Kravets, " 'Obscene' U.S. Manga Collector Jailed 6 months", Wired, Feb. 12, 2010 (accessed 7 January 2017).
  18. ↑ Wayne Overbeck and Genelle Belmas, Major Principles of Media Law, 2012 Edition, Chapter 10, Cengage Learning, 2011, ISBN 9780495901952, pp. 433ff.
  19. ↑ "Is Manga a Crime? Non-photographic Images, Child Pornography and Freedom of Expression", Entertainment, Arts and Sports Law Section of the New York State Bar Association, May 23, 2012 (accessed 7 Jan. 2016)
  20. ↑ Rosalind E. Bell, "Reconciling the PROTECT Act wth the First Amendment", NYU Law Review, Vol. 87, Dec. 2012, p. 1878-1917. (accessed 7 Jan. 2016)

Further reading

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