In the United States, visual depictions (such as drawings) of child abuse images is illegal provided they are ruled as obscene. This would make things like lolicon/shotacon (a type of cartoon child pornography) illegal in the United States (provided they are considered obscene), yet there are plenty of websites hosted in the United States that permit it to be posted in their website explicitly in their rules (4chan comes to mind), or just simply forbid real child pornography and say nothing about obscene cartoons. Yet, the FBI has never seized the servers of these sites, nor collected and disseminated to other countries IP addresses of those accessing such content, to arrest them like in Operation Avalanche. Why is that? The Dept of Homeland Security has even worked alongside 4chan before and described having a "working relationship" with them.

There will surely be a lot of content that could be ruled as obscene in a court of law -- couldn't search warrants for the servers be granted and prosecutions made to those who downloaded/viewed the obscene content? There's surely a legal recourse to actually do this. I understand Section 230 is a thing, but surely the websites have to comply with US law, so if they permit material that could be ruled obscene that wouldn't be the case, surely?

Not only that, but some countries outright consider, obscene or not, cartoon child pornography illegal. What's stopping them from asking the US's assistance in raiding the servers like the US literally did in the case of shutting down Megaupload?

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    This might also be on topic for law SE (I’m not sure I don’t use that site too often though) May 10, 2021 at 14:54
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    @EkadhSingh "What is the law on this kind of pornography in the US" would be on topic for law.se, "Why hasn't the government enforced them" may be on topic here. May 10, 2021 at 15:11
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    @IllusiveBrian Agreed. Law.SE is about what the law says. This question is not about that, its about the actions of the executive to enforce the law (or not). Definitely on topic here. May 10, 2021 at 15:38
  • Perhaps because they would then have to deal with major First Amendment issues?
    – jamesqf
    May 10, 2021 at 15:42
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    Why can you hack a wolf apart with your sword in a video game but not in live action TV?
    – Obie 2.0
    May 11, 2021 at 1:19

1 Answer 1


The issue here is not standing but the fact that some such laws (which exist in other countries like Canada or Australia) that ban the mere depiction in cartoons of sexual acts with children were struck down by the US Supreme Court as infringing on freedom of speech, which in the US gets some of its broadest interpretations worldwide. To wit, former LA prosecutor Neil Shouse writes:

Under federal law, animated child pornography may be an offense. Congress passed the “PROTECT Act” in 2003, which outlaws anything that contains “a visual depiction of any kind, including a drawing, cartoon, sculpture or painting“, that “depicts a minor engaging in sexually explicit conduct and is “obscene” or “depicts an image that is, or appears to be, of a minor engaging in…sexual intercourse…and lacks serious literary, artistic, political, or scientific value.”

The PROTECT Act passed following the striking down by the U.S. Supreme Court of a prior federal law that made simulated child pornography illegal. The Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) claimed the prior law was too broad and violated the First Amendment since it “prohibits speech that records no crime and creates no victims by its production.”

Note that the First Amendment does not offer protection for “obscene” speech. Miller v. California, 413 U.S. 15 (1973). Therefore, images depicting child sex acts that do not involve real children can violate the PROTECT Act if the material is considered “obscene.” In its decision affirming the constitutionality of the Act’s outlawing of obscene virtual child pornography, the Ninth Circuit stated that “the fact that this statute does not require that an actual minor exist… is immaterial because… it is an obscenity statute and not a child pornography statute.” U.S. v. Schales, 546 F.3d 965 (9th Cir. 2008).

So although you may not face federal charges of “child pornography” for the animated or virtual depictions of child sex acts, you may still face federal charges if the material is deemed “obscene”.

As Wikipedia details a bit on this matter, the 2003 Act essentially added two of the tree prongs of the Miller test (itself devised by the Supreme Court to define obscenity) to the 1996 CPPA provisions that by themselves were ruled too broad by the Supreme Court.

However prosecution for obscenity is itself notoriously difficult in the US, per NYT (2007):

Despite stirring anti-pornography speeches by both heads of the Justice Department during the Bush administration — John Ashcroft and, more recently, Alberto R. Gonzales — there have been fewer than two dozen federal obscenity prosecutions that did not also involve charges of child pornography.

While I could not find any stats on [obscene] "virtual child porn" prosecutions under the 2003 Act, some do seem to exist. There's is one 2013 announcement from the Justice Department.

[the defendant] pleaded guilty to possessing an obscene image of the sexual abuse of children. The pornographic cartoon, which depicted children engaging in sexual behavior, is categorized as obscene and therefore illegal. The original indictment, which charged [the defendant] with receiving child pornography, was dismissed today as part of the plea agreement. [...]

During the forensic examination of [the defendant’s] computer, a collection of electronic comics, entitled “incest comics,” were discovered on the computer. These comics contained multiple images of minors engaging in graphic sexual intercourse with adults and other minors. The depictions clearly lack any literary, artistic, political or scientific value.

Interestingly, perhaps, the FBI was not [mentioned as] involved in this investigation, but only Missouri state authorities, although the defendant was sentenced in federal court.

There is however one 2006 case, which was actually highlighted on FBI's website as the first conviction under the 2003 law:

Whorley—who had spent time in jail on previous federal child pornography charges—became the first person in the U.S. to be convicted under the 2003 law. On Friday (March 10), he was sentenced to 20 years in prison and fined $7,400. [...]

Our computer experts in Richmond and from the Child Exploitation and Obscenity Section of the U.S. Department of Justice extracted evidence from the computer, and a Japanese linguist at FBI headquarters translated the text of the cartoons to provide further proof of the cartoons’ content.

FBI Agent Gerald Kim, who led our investigation in Richmond, said the cartoons were extremely graphic. “There was no doubt about what was being depicted,” Kim said.

The Japanese anime was just part of the case against Whorley. Our cyber experts found digital photographs of child porn on the same [...] computer. [...] He was convicted of a total of 74 counts of obscenity and child pornography.

So it seems the FBI first chose to use the 2003 law in a combined obscenity + non-virtual child porn case, which--as the NYT noted--makes the majority of such prosecutions.

I don't know a clear/stated reason why the FBI [probably] prioritizes these combo cases, but it's easy to guess/speculate why they do that: in cases that involve real children adding some years/counts of conviction using the obscenity charges is fairly simple and the defense is probably not likely to try to challenge the cartoon/virtual obscenity charges on "artistic" grounds when the defendant is [also] found having non-virtual/real child porn.

I guess a problem is that there is a surprisingly large amount of complaints that the authorities apparently have to sort/prioritize:

In 2019 alone, the National Center for Missing and Exploited Children received 16.9 million reports related to suspected child sexual exploitation material online. [...]

"Notables" are images and videos that have been reviewed by law enforcement officials and determined to depict children under age 12. The material typically comes from the seized devices of suspects or reports from technology companies. That, police say, rules out some material that either isn't illegal in every jurisdiction or isn't a priority for prosecution.

  • This tells me that prosecutions do happen for depictions of this sort, but not why the FBI doesn't go after websites that host this kind of content when it demonstrably has landed convictions in the past. Perhaps one case is hard enough to prosecute obscenity, let alone multiple if one were to do an "Operation Avalanche-style" takedown of a site. There was a suggestion in my other post that it is up to website moderation teams to dictate what is and what is not "obscene" under Miller, from the line about applying "community" standards.
    – harryznm1
    May 10, 2021 at 19:22
  • @harryznm1 Another poster there questioned that interpretation of "community", indicating that to his knowledge courts always used a geographic region to constitute a "community". This makes sense in the context of criminal law, at least insofar as one expects to be tried by a jury of one's peers, by your community, which has long been tied to geography (e.g. by county borders, state borders, etc.). It seems not terribly silly to imagine we might be approaching a time when courts may have to consider abstract "digital communities" in a similar vein, but I'm not sure we're there yet. May 11, 2021 at 0:58

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