Under the Bush administration, obscenity laws went through a period of revival and assumed a more prominent position in federal law enforcement efforts. This largely began in 2005 when the FBI assembled a team to actively search for "deviant porn" as part of an anti-obscenity initiative that then Attorney General Gonzales and FBI Director Robert Mueller described as "one of the top priorities" of the Bureau. Cases brought before the courts as a result of the trend towards stronger enforcement of obscenity laws has led to some troubling legal precedents.

In a recent example reported by Wired, an appeals court has upheld an obscenity conviction against defendant Dwight Whorley for possession of hentai, pornographic Japanese comic books. Whorley was also convicted of a second obscenity count for writing an e-mail describing a sexual fantasy that was regarded as deviant by a jury. In a dissenting opinion, judge Roger Gregory argued that the court's decision has troubling implications for freedom of expression and is not consistent with decisions that have been issued by the Supreme Court.

"The Supreme Court's obscenity jurisprudence has never come close to stripping adults of First Amendment protections for their purely private fantasies, and the implications of our sanctioning this kind of governmental intrusion into individual freedom of thought are incredibly worrisome," he wrote in his opinion.

In the case of Dwight Whorley, it's impossible to argue that his interest in the allegedly obscene hentai was purely artistic or cultural. In addition to the obscenity charges, he was also convicted of possessing actual child pornography. As such, his punishment is deserved. The problem, however, is that the separate obscenity convictions set a dubious precedent that could have a chilling effect on freedom of speech and be used against artists or manga collectors who are not pedophiles.

The Miller test is the means by which the courts determine if content falls under the legal definition of obscenity. Devised by the Supreme Court in a 1973 case, the Miller test asks if a work depicts sexual or adult acts in a patently offensive way, is considered by contemporary community standards to appeal to the prurient interest, and lacks literary, artistic, political, or scientific merit. In the years since, enforcement has been inconsistent.

Legitimate comic collectors are already being targeted in the obscenity crackdown. Last month, Wired reported that one manga enthusiast, who never owned actual child pornography, faces charges under obscenity laws and a maximum prison sentence of 15 years because he owns several comics that contain images of underage girls engaged in sexual acts with animals. The vast majority of his large manga collection was said to be nonpornographic. The Comic Book Legal Defense Fund and other similar groups issued a statement vocally supporting the defendant.

Naughty drawings weren't always subject to obscenity laws. These prosecutions are a relatively recent development that was facilitated by the Protect Act of 2003. One aspect of the Protect Act is that it criminalizes artificial depictions of obscene acts, including drawings or computer-generated representations. It's unclear if that will hold up to legal scrutiny in the long run.

Judge Gregory asserts that the decision in the Whorley case is at odds with Supreme Court precedents. This is an allusion to a 2002 Supreme Court ruling in Ashcroft v. Free Speech Coalition which struck down a similar provision in the ill-fated Child Pornography Prevention Act of 1996. It's possible that the Supreme Court would reaffirm that position and reject the simulated pornography component of the Protect Act if Whorley's case escalates to that level of the judiciary. It's worth noting that other components of the Protect Act, such as the controversial "pandering" provision, have already been struck down as unconstitutional.

For aficionados of extreme art, the move to enforce obscenity laws against artificial depictions of sex acts is very troubling. The most risqu� material of the day will always be just outside the bounds of contemporary community standards. Art could suffer gravely if such content is stripped categorically of its First Amendment protection.

The ambiguity of obscenity law always compels me to consider the case of Allen Ginsberg's masterpiece Howl, which led to obscenity charges against Ginsberg and Lawrence Ferlinghetti. A poem that is regarded today as one of the defining works of an entire generation narrowly avoided destruction at the hands of censors. The boundaries imposed by the Protect Act, much like the obscenity laws that were used against Ginsberg, represent a dubious challenge to the strong First Amendment protections that are needed to ensure the freedom of artists to advance controversial ideas.

Listing image by Dave Hogg