Texas fans of anime and manga were thrown into an uproar earlier this month when news emerged that the state's Senate had ed a bill that could potentially make it a felony to possess anime and manga that appear to depict minors in an obscene manner. Although the bill has not yet become law, Texas Lieutenant Governor Dan Patrick has expressed his for it, indicating that its age will be a priority for him.
The bill - Senate Bill 20 (SB-20), also known as the "Stopping Artificial Intelligence (AI) Generated Child Pornography", criminalizes the "possession or promotion" of images that "appear to depict" children under the age of eighteen and are deemed "obscene." This applies regardless of whether the depiction is a cartoon, an animation, or an image created using AI or other computer software. The bill's rapid age in the Senate, where it received unanimous in just two weeks, is now under consideration by the State's House of Representatives. Given its momentum and backing by the Lieutenant Governor, it is unlikely that the House will delay its review for long.
Why Texas Anime and Manga Fans Should Be Worried About SB-20
The Law Could Have an Unexpected Effect on Anime and Manga
While the SB-20's stated purpose is to combat the increasing problem of AI-generated and computer-created child pornography, its language could encom depictions of minors that do not traditionally meet the legal definition of child pornography. This ambiguity is a source of concern for anime and manga fans, who fear the potential that they will be deemed criminals.
The issue with the law as it pertains to anime and manga is threefold. Firstly, the demographics of anime and manga characters skew young, with a significant number of protagonists being minors. Notable examples include One Piece's Monkey D. Luffy, My Hero Academia's Izuku Midoriya, and Attack on Titan's Eren Yeager, all of whom are either minors or spent a substantial portion of their series as minors.
The term "fan service" arises from manga and anime creators' attempts to please their fan bases by including sexually suggestive material.
Second, from the perspective of cultural norms and regulations, Japan has a relatively less restrictive approach to the depiction of anime and manga characters in sexualized or sexually suggestive situations. In short, it is not uncommon to see anime and manga characters portrayed in such suggestive depictions. Third, a significant portion of the anime and manga content accessible in the United States is produced using computers or some form of computer software.
A straightforward application of SB-20 to a Texas manga fan who ed a copy of My Hero Academia Chapter #368 — which was widely criticized for its sexualized depiction of the underage high school student Toru Hagakure (AKA Invisible Girl), whose powers require her to be fully nude — would likely result in a legal violation. This offense carries a punishment of 180 days to two years in state jail, along with a fine of up to $10,000. Needless to say, this is an extremely harsh penalty for an otaku simply trying to find out who Class 1-A's traitor is.
What the United States Supreme Court Has Said About the Law
Fortunately for manga and anime fans in Texas, as well as distributors, their fears may be short-lived if the bill becomes law without changes. The issues addressed in SB-20 have already been considered by the Supreme Court of the United States. Based on the court's analysis, SB-20 is likely unconstitutional. Under the U.S. Constitution's Supremacy Clause, when a federal court rules on a matter involving the U.S. Constitution, its decision supersedes any state laws addressing the same issue.
In the 2002 case Ashcroft v. Free Speech Coalition, the law in question was the Child Pornography Prevention Act. This act, similar to SB-20, aimed to outlaw the possession of materials that appeared to depict minors engaged in obscene conduct, even if those depictions were virtual or computer-simulated and did not involve actual minors. In a 6-3 decision, the Supreme Court ruled that outlawing "virtual" images of minors, that would not otherwise be considered obscene, was unconstitutional.
The Court emphasized that while the law's objective of protecting children is valid, this validity diminishes when no real children are involved. In essence, regardless of the emotional response an anime or manga character might evoke in a fan, these characters remain fictional - so the law is incapable of helping them.
SB-20 Highlights Ongoing Efforts to Ban Anime and Manga in The U.S.
There is, however, a "catch". In reaching its conclusion, the Court had to consider not only the fact that virtual images do not involve real children, but also that the law prohibits images that are otherwise lawful —such as those that may be sexualized but not obscene— which are protected as free speech under the First Amendment. The Court determined that if an image, whether virtual or not, is deemed obscene, then the law may apply. However, this element does not apply to works that demonstrate literary or artistic value.
Considering that anime and manga — both forms of artistic expression — are generally recognized as having some degree of artistic value, they would seem to be outside the scope of SB-20 under Ashcroft. However, that does not mean an official wouldn’t attempt to apply the law to a Texas anime or manga fan. To succeed, they would need to demonstrate that SB-20 serves a compelling governmental interest (such as protecting children), is narrowly tailored so as not to restrict otherwise lawful content (including anime and manga with artistic value), and that no alternative measures, such as content filters, could achieve the same objective.
In other words, the law might apply in limited cases — for example, if the state can demonstrate that the anime or manga in question lacks artistic value. However, in the vast majority of cases involving anime and manga, the law should fail. Hopefully, for most anime and manga fans in Texas, the issue will not even reach that point.
