Disclaimer: I am not a lawyer. What is provided here is intended for casual informational purposes only.

American obscenity law, possibly the most controversial of its kind on the globe, finds its roots in old English common law. In particular, in libel law, which originally focused on preventing sacrilegious materials from being distributed. The church’s diminishing importance meant that it pressured the government to take it upon itself to enforce public morality, a social role which used to be that of religious authorities.

First enunciated in Curll in 1927, the criminal offense of obscene libel was explicitly recognized as a temporal offense because it involved impious behavior or expression that would tend to cause a breach of peace by challenging religion, thereby weakening the bonds of society, virtue and morality. [1]

However, as society’s mores changed, this law came to be used to censor anything perceived by legislative authorities as disruptive to public morals. This ultimately led to libel law being used to stop distribution of any “unacceptable” material – according to the moral climate of the time, which (therefore) was still firmly under the grip of religious, puritan notions of “virtue and morality”. As will be shown later, this seems to have set in motion a self-reinforcing cycle that has yet to be broken.

Over time, the court extended the misdemeanor of libel to cover critical or contemptuous statements regarding the government (as political and seditious libel), religion and elements of faith (as blasphemous libel), and public expression or conduct that challenged or threatened public morality (as obscene libel). [1]

If parts of this definition are covered by modern libel and defamation laws, the latter part would lead to the creation of a legal concept in its own right, that of “obscenity”. The turning point came with the Obscene Publications Act 1857, in the UK. From this point onwards, it was conceivable that some information be legally banned purely and explicitly because it “corrupts” the morals of whomever consumes it. The bill was met with strong skepticism even at the time, but was passed regardless. It would be the beginning of a series of – still ongoing – attempts to make obscenity a viable legal concept; it is unthinkable that a category of things be made illegal without a clear definition of that category (in the absence of which the law would be void for vagueness).

In order for any word [...] to have a potential use, it must have some meaning which allows us to understand its use in the face of competing theoretical conceptions. [...] For Gallie, the existence of an exemplar makes it possible to meaningfully use words whose essential characteristics are contested. [2]

The first attempt at giving “obscenity” a legally relevant definition resulted in the so-called “Hicklin test“, which originated from the English law case R. v. Hicklin and “judged [material] merely by the effect of an isolated excerpt upon particularly susceptible persons”. It famously asserted that any legislature could censor material that ”depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall.” As might be intuitively assessed by any contemporary reader of these lines, this was not anywhere near sufficient to base a law upon.

The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments. [Roth v. United States, 354 U.S. 476, 495 (1957)] [3]

Yet, the “Hicklin test” was readily adopted by US legislators – despite the lack of a precise definition of obscenity, the US federal government and a number of states passed the Comstock laws in 1873, which were the first to apply to American law the English concept of obscenity. These laws, among other provisions, restricted the distribution of information pertaining to abortion and birth control, and as such were still clearly situated within a religious moral worldview. Several works that would later be considered timeless classics were banned under Comstock laws (and all obscenity laws).

It is only a bit over half a century ago that the “Hicklin test” was superseded by the “Roth test”, that resulted from the Roth v. United States case, in 1957. According to this test, material is obscene if “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” This effectively moved the focus of the law towards pornography, which at the time was still a phenomena in its infancy. A somewhat cynical but seemingly plausible interpretation of this move would be that the courts claimed that in fact only pornography can “deprave and corrupt”. With the entry of pornography into the mainstream, it became obvious that the “Roth test” was practically unenforceable.

As soon as 1964, the Jacobellis v. Ohio case questioned the validity of obscenity law. The results neither reaffirmed nor invalidated the Roth ruling, but rather led to a rare level of fragmentation among the Justices’ viewpoints. The film The Lovers was being prosecuted by the state of Ohio for obscenity and was found to not be obscene. However, the Justices were unable to agree on any single definition of “obscenity”, and the case became especially well-known mainly because Justice Potter Stewart, who advocated a definition of obscenity encompassing only “hard-core pornography”, included in his ruling these infamous words:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Mixed opinions remained the staple of US obscenity law until a new case circumscribed further the concept of obscenity: Miller v. California in 1973. This led to the formulation of yet another infamous piece of law, the “Miller test“, according to which material is to be deemed obscene if the three following questions are answered in the affirmative:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [4]

A few decades later, with the rise of the Internet, another branch of law, criminalizing recordings of child abuse and originating mainly from broader child welfare laws, came to be strictly enforced; child pornography subsequently became the greatest ill of the Network society in the minds of many*. The apparent ambiguity of the notion of “child abuse” led some to believe that those laws existed not to protect the privacy or integrity of the children being abused, but rather protect public morals at large (cf. Further Down the Road of Social Insanity ¶ 8-11). Only a very small logical step was thereafter required to infer that any depiction of any “child”, regardless of whether said child exists or not, should be illegal.

In 2002, the Supreme Court struck down [in Ashcroft v. Free Speech Coalition] the Child Pornography Prevention Act of 1996 (CPPA), Congress’s attempt to ban “virtual” child pornography under the rubric of child pornography law. Once Congress lost its bid to use child pornography law to criminalize virtual images of child sexual conduct, what was left? Obscenity law. Thus the PROTECT Act explicitly invoked obscenity law as the method to restrict virtual child pornography in the wake of the Court’s decision. In this way, the First Amendment victory over the attempt to expand child pornography laws became less clear cut; it simply led to an alternate approach to the problem through obscenity law. [3]

As a result of United States v. Williams, an important legal battle that questioned the constitutionality of aspects of the PROTECT Act, the Supreme Court upheld some provisions of the Act, but specifically denied that it meant that “virtual child pornography” was prohibited. Only pandering was made explicitly illegal by the case. Therefore, if “obscenity” is still unprotected speech under US law, the specific legal status of any particular work in the US is still uncertain. The Miller test appears to be still considered a valid measure of the “obscenity” of information, as illustrated by the 2005 case United States v. Extreme Associates.

Meanwhile, obscenity law in England and Wales was consistently defined by the successive Obscene Publications Acts, enacted in 1857 (cf. ¶ 6 above, no longer enforceable), 1959 and 1964, until the Criminal Justice and Immigration Act 2008. Section 63 of this act banned “extreme pornography” under a new definition of obscenity: the material prohibited is not obscene because it “depraves and corrupts”, but rather because it is “grossly offensive” and “disgusting”…

As ultimate food for thought, I believe the following quote to end nicely this document:

It was the intense difficulty of defining obscenity that led Justice Brennan, the original architect of the Court’s obscenity jurisprudence [Roth v. United States], to turn his back on his own creation. After sixteen years of obscenity cases, he concluded that the original goal of obscenity law was unachievable–it was impossible to prohibit obscenity while protecting valuable speech. [3]

* Perhaps tellingly, as of the writing of these lines, Google returns 928,000 results for child pornography network society and 731 000 for piracy network society. It is also worth noting that unlike in the case of the piracy query, a strong consensus is discernible from the results of the child pornography query.

[1] Alexander, James R. Roth at Fifty: Reconsidering the Common Law Antecedents of American Obscenity Doctrine (2008). http://faculty.upj.pitt.edu/jalexander/Research%20archive/Constitutional%20law%20articles/Roth%20at%2050.pdf

[2] Schauer, Frederick. Speech and Speech – Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional language. http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2012&context=facpubs

[3] Adler, Amy M. “All Porn All the Time” (2008). New York University Public Law and Legal Theory Working Papers. Paper 67. http://lsr.nellco.org/nyu_plltwp/67

[4] U.S. Supreme Court. MILLER v. CALIFORNIA, 413 U.S. 15 (1973). http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html

But freedom of speech is no longer the center of attention. We discuss politics, philosophy, religion, ethics, technology, all of the above in any given proportion… we also write about what we ate for dinner if it’s unusual. More like a group of old friends than an activist group.

I therefore rename Yes to Freedom to yestofreedom, which will now refer to this website and the IRC channel. Forums suck, so the forums will become archives in read-only mode. Several other significant changes will be made – e.g. to the “About” page and such, to the layout… – and the image and role of the group will be heavily reconsidered. That doesn’t mean we no longer stand for free speech or that we’re planning never again to release some academic-paper-like blog post to somehow defend it. Don’t worry, we’re still fighting.

Our “family” is not closed. It’s roughly as loosely-knit as it was in the past. If you happen to be open-minded and to support civil liberties, try joining us. It can be a lot of fun, and even sometimes quite useful. For me at least, my adventure with the group has been, to some point, life-changing. I can no longer forget or forsake what I have done here. So at least I, will keep going.

We do not – and will never – delete any comments that are genuinely against our goals and ideals. We believe that it is preferable to respond to these comments in a sincere and polite fashion. However, very few comments of that kind are written in response to our articles. What we do receive, however, are comments that disagree with the means we chose to attain our goals; we get one of these every few weeks. Invariably, such comments vilify Yes to Freedom by criticising its lack of “offensive action” and overall peaceful approach. Some even explicitly request that we hack the websites of organisations that hold views conflicting with ours!

I wish to make it clear once and for all that we will not bother to publish comments of that kind on this blog, let alone write answers to them. Anyone who writes one understands neither the purpose nor the nature of Yes to Freedom. We are in favour of free speech, not inherently against those who are not, and we respect these opponents of ours. And most importantly, we hold the firm belief that our position on these matters will prevail by the use of reason alone – we refuse categorically to let ourselves be swayed by anger, indignation, etc.

Finally, on the issue of “censorship” within a pro-free-speech organisation, the most appropriate answer I can find is also the only one from a purely logical standpoint. That is, this is not an issue for one who understands the concept of “free speech”. That ideology in no way implies one’s right to impede on someone else’s privacy and say anything anywhere, and that we could never say enough. Freedom of expression – in its socio-political meaning which we are using for clarity – only refers to speech in one’s own privacy and in State-governed space. Thus, we fully agree with the right of individuals, corporations and organisations (including ourselves) to choose the content they produce and display.

That is not to be frowned upon from a purely pro-free-speech point of view.

Trying to access the website, for several hours, yielded nothing but the depressing message:

Error establishing a database connection.

The entire [MySQL] database was wrecked, and thus was reset. Several tables had to be manually re-implemented in part or whole. Please notice us through a comment to this post or email at contact[at]yestofreedom.org if you encounter any problems or anomalies. Additionally, a “Conditional CAPTCHA” plugin has been installed, which will request that you answer a simple question if your comment is thought to originate from a bot.

This website has been growing fast for the past six months, and now receives an average of over 160 unique visitors daily. More than 45 000 people have visited it since its inception, and about 220 letters were sent through our mailing system alone. That is far from being anywhere close to having an impact on worldwide policies, but it is still encouraging data taken into account that Yes to Freedom is barely six months old.

This attack demonstrates that we are beginning to have a certain impact on the web. We will need to be much more careful from now on. We thank you for your support over the last 6 months; of course, we always are in need of all the help that we can get.

Dear MangaGamer:

In light of the recent events that led to your difficult decision to not censor bishoujo games released under your label, we feel that it would be prudent to formally introduce ourselves. We are known as “Yes To Freedom” and are a grassroots group which has formed out of sheer frustration over the outrageous actions of radicalized pressure groups such as Equality Now, that generate censorship issues all around the world. We applaud your decision to resist the censorship of “offensive” fictional material, and as your message boards make it very obvious, you have the utmost respect and support from our group as well as your customers and fans all across the world.

Apart from this extremely well-deserved words of encouragement, we are writing for a much more important reason. There is no shortage of groups and organizations on this planet that seem to have no purpose in life beyond forcing their own moral codes upon others through whatever means possible, and Equality Now is merely the loudest and most troublesome of these at present. Unfortunately, the number of groups that actively oppose such clusters of overzealous moral crusaders is small enough to be statistically insignificant; those who have formed thus far to defend a person’s right to make their own decisions about what they purchase have just as easily fallen apart due to the intense fear of being labeled as “evil” by their opponents.

Yes To Freedom possesses the resolve that many other groups have been unable to maintain for more than a couple of weeks. We have proven to the Japanese subculture fans’ community – the very community your business relies upon – that we are not a one-shot group which will simply fade to black in a week. The actions that we are taking on a daily basis directly affect your customers. Yes To Freedom’s campaigns may one day make the difference between you choosing not to censor “questionable” eroge art and being forced by law to censor what a small group of loud-mouthed moralists decides is “disgusting”, “sick” or “obscene”.

We do not, and never will, ask for anything tangible from anyone such as money or products. What we need is your support, now and in the future. In order for the “teeth” of Yes To Freedom to become stronger and sharper, we need all the support we can possibly muster. Every single individual is important. Your support will bolster our efforts to keep fictional expression free of unnecessary and Draconian censorship. With your help and the help of others in a similar position, we can provide the sorely needed “push back” against these people and groups that would otherwise take away what the world of modern Japanese visual culture offers, amongst other content they deem objectionable.

Thus, please consider supporting our efforts to maintain the freedoms that you and your fans currently enjoy so that we all may continue to enjoy them tomorrow. We gladly welcome and strongly encourage any communication and collaboration you are able to provide, and we look forward to sharing a bright future in anime, manga, and eroge with you. Thank you for taking your precious time to read this email. We truly appreciate the recent choices your company has made, and eagerly await your response.

Sincerely,

Yes To Freedom

To our surprise, we received a reply soon after. However, it merely proved our greatest fears to be true:

Dear Yes to Freedom,
Thank you for your interest in MangaGamer. As a company, we seek to provide
English localizations of popular Japanese bishoujo games, of which, some may
contain adult content.
Please do understand that as a private commercial company, we cannot provide
support to a group such as yourself no matter how similar our ideals may
seem. The decision to uncensor was made as an internal policy decision,
not as the statement for freedom of speech that you seek.  Although we
appreciate your support of our decision, we cannot afford to take sides in
the ongoing debate between yourselves and those that oppose you, as we are a
commercial entity and must only remain as such.

Sincerely,
MangaGamer

The first paragraph is already disappointing: it appears to be a staple short paragraph intended to be sent along with “all emails” – and if it is not, then it is quite obvious that they did not read our email… but the second paragraph dismisses the second hypothesis.

They appear to have yet to understand that merely publishing bishoujo games uncensored is in itself a “statement for freedom of speech,” as they are publishing material which, while not actually harming any child in its creation, is nonetheless deemed illegal and categorised as “child pornography” in several countries including Canada, Australia and the UK. Furthermore, being a “private commercial company” in no way means that you cannot take position in an ethical/political debate, especially if your core business relies on the issue of said debate. A perfect example of this would be Microsoft’s “When you program Open Source, you program Communism” poster campaign.

Even worse is the opening statement that seemingly implies that private corporations cannot support external, non-profit organisations. That is such an ignorant statement on both logical and factual planes that the time spent on creating an informative response to it seems pointless, as it would fall on deaf ears.  It should now be obvious to everyone that both those that censor and those that don’t can be equally proficient at using modern “Newspeak.”

It is unfortunate that MangaGamer has chosen this path.  The MangaGamer forums are filled with posts which express a vicious and acerbic customer response to the mere consideration of censoring future MangaGamer releases.  Clearly, the consumers of bishoujo games are strong opponents to censorship, and it is not limited to customers of MangaGamer.  JAST USA, another company which specifically deals in anime-style dating simulation games, experienced a similar customer backlash for the exact same reason: the suggestion that future titles could possibly be censored left a sour taste in the mouths of many fans.

Both companies experienced consumer boycott threats if they went through with the proposed censorship plans.  Both companies buckled under the pressure of a mob of angry fans and made “internal policy decisions” to cancel the planned censorship.  Both companies’ bottom lines are apparently safe for now.

But what of the future?  MangaGamer and JAST USA are blessed with the freedom to make that decision as one of “internal policy” today.  There exists today a series of misguided movements by vehement moralist groups to force their personal morality onto all people using the legislative, judicial, and police powers of governments at all levels, completely disregarding the freedom of other adults to make a fully informed personal decision about the material they purchase and view.  Sadly, the moral hysteria and fear that these groups generate has already seriously degraded freedom in many countries around the world, and not just in terms of what kind of drawings are allowed in a video game.  The momentum is already flowing opposite from the direction of freedom.  If it remains unchecked, MangaGamer and JAST USA will be forced under legal duress to censor their games – an action which their entire customer base will severely punish them financially for taking.

It may be true that – for the moment – MangaGamer refuses to support Yes To Freedom.  However, the freedoms that we must protect are those of their customers and fans of their products.  We do not require MangaGamer’s support to work for your freedom to choose. Take this opportunity to show your support!  Even a short comment on this post helps us to achieve our goal of protecting the freedom of responsible adults to make their own financial, moral, and ethical decisions.

[Clarification update: YES, we are aware that MangaGamer's letter is not outright "refusal to support."  It seems the hyperbole was lost on some readers of the post and they got upset over it.  We get it: most of MangaGamer's staff members support our cause, but they do not wish to say so "officially" due to corporate hazards.  We had to officially ask, they had to officially refuse.  Technically, that is still called a refusal.]

We have named said character Freedom-tan – or, in Japanese, Jiyū-tan (自由たん) - as a clear reference to our goals and ideals. While her rather diminutive frame is somewhat meant as a reference to our campaign on lolicon art, her usual items hold a more mainstream meaning. The pen/brush is a way of defining writing as a “peaceful weapon”. The art palette, on the other hand, stands as a shield – art – against censorship and everything yestofreedom opposes. Finally, the feather, official logo of yestofreedom, symbolizes both freedom itself, through its link with bird-like features.

The character was designed and drawn by Deth with help from an exterior artist, ATOM-ix, as well as our community for insight and the overall concept. She is licenced under a Creative Commons Attribution license as are all original creative works authored by its members for the organisation.

Here are the basic versions. Click on them to see them in full size. Several more accessories, poses and clothes will be added later to create a complete persona.

This is what we are doing – we are beginning to tell the world our message in a way they understand.

No matter whether you are a hardcore otaku or grandparent, policeman or convict your words will help: every little thing counts. Show the world what we believe in the only way possible. That is, through the raised voices of a million normal people like you and me, fighting for freedom. Help us by joining, by sending letters to politicians and congressmen, presidents and prime ministers, clergymen, friends and family: get the word out that as a race, we will not stand by and watch our freedom be trampled.

You may use this pre-written code to include the buttons.

HTML, small button:

<a href=”http://yestofreedom.org”><img style=”border: 0px solid ; width: 125px; height: 25px;” alt=”Small YtF Button” src=”http://yestofreedom.org/files/public/ytf_button_small.png”></a>

HTML, large button:

<a href=”http://yestofreedom.org”><img style=”border: 0px solid ; width: 200px; height: 50px;” alt=”Large YtF Button” src=”http://yestofreedom.org/files/public/ytf_button_large2.png”></a>

BBCode, small button:

[url=http://yestofreedom.org][img]http://yestofreedom.org/files/public/ytf_button_small.png[/img][/url]

BBCode, large button:

[url=http://yestofreedom.org][img]http://yestofreedom.org/files/public/ytf_button_large2.png[/img][/url]

Actualy [sic] by all logical means.
Equality should support hentai as hard as they could.

But they don’t think logicaly [sic] do they?

So now, do radical feminists think “logically”? The normal, reactionary answer of most readers of this very post would be that “such people can’t be logical”, that they “obviously are acting on the impulse of emotion”.

I beg to differ. Most women – and men – that militate among organisations such as Equality Now, the very kind Yes to Freedom is fighting against, are in no way short of intelligence and logic. Equality Now’s past campaigns hint to this quite conclusively.

But then, why would they go astray to the point of launching an attempt at large-scale censorship? The answer lies within the answer, “large-scale” being the key. And such is the logical reasoning that it implies: if one thing is censored as objectionable widely enough, it will be seen as plain immoral, and thus the number of people that it appeals to will diminish considerably. As prurient fiction depicts immoral conduct, it should be banned just as the material it depicts, otherwise the first reasoning cannot work to the extent it should.

That is indeed logical. However, logic does not imply truth. For example:

All men have blue skin.
Socrates was a man.
Thus, Socrates had blue skin.

In this regard, the former reasoning has several flaws:

1. The fact that one thing is widely considered immoral does not mean that it is “immoral”, let alone that it should be.
2. Nothing proves that making something “immoral” lessens the amount of people that it appeals to. This presupposition confirms the reasoning, but is not necessarily true.
3. Prurient fiction does not inherently depict “immoral conduct”: morality is something that individuals and/or cultures define.

Consequently, most proponents of censorship do think logically. There are of course some exceptions, just as is the case among our ranks. That is why I support using logical means to attain our goals.

[Rogue editor's note: stop leaving outrageously trollish and stupid comments, I'll delete them even if the other editors approve them.  Thanks.]

Recently, actions were made against erotic manga, anime, and games due to the depiction of ”minors” (an issue that is extremely controversial as the vast majority of the time, it is next to impossible to distinguish an adult character from a minor), rape and BDSM.

There is no direct causal link between this fictional material where no one has been harmed in the making, distribution, or possession of, and crime. Therefore it is impossible to suggest that such material violates the human rights of others, when it neither inhibits their freedom of speech, nor harms them in any way.

To see a more definitive outline of our views on this topic, check the arguments page; it will be updated shortly with more material regarding our views on the fictional material depicting rape. Formal letters (with a list of people whom to send them to) are also being created for anyone who wishes to show their disapproval of this draconian banishment of free speech.