What are the charges that could arise for provately possessing obscene fanfic with minors both federally and in Nevada? Or is this protected under 1st amendment?
Executive summary
Federal law criminalizes obscene sexual depictions of minors in non‑photographic and visual forms and can carry decades in prison—first‑time offenders under 18 U.S.C. §1466A face “at least 5 years and a maximum of 20 years” in some prosecutions involving obscene visual depictions of minors [1]. Nevada law treats exhibiting or selling obscene material to persons under 18 as a misdemeanor (up to six months jail and $1,000), while separate Nevada child‑pornography statutes make producing or possessing sexual depictions of real minors a felony with much harsher penalties [2] [3].
1. Federal landscape: obscenity, virtual images and the PROTECT Act
Federal obscenity law is not protected by the First Amendment; courts apply the Miller test and the Justice Department warns that visual representations—including drawings or cartoons—depicting minors in sexually explicit conduct can be prosecuted under 18 U.S.C. §1466A and related provisions, and convictions in those contexts can carry severe penalties including five to twenty years and sex‑offender registration in some cases [4] [1]. The PROTECT Act and subsequent guidance mean that “virtual” or non‑photographic depictions can be targeted if they are obscene or meet the statute’s definitions and if they move in interstate commerce (internet transmission) [4] [5]. Available sources do not mention a guaranteed federal safe harbor for written text alone; DOJ discussion and federal statutes emphasize visual representations and distribution across state or international lines [1] [4].
2. First Amendment: broad protection for text but important limits in federal reporting
Multiple sources describe that not all sexual content loses First Amendment protection; non‑obscene sexual expression—whether fan fiction or other written works—is generally protected, and courts have historically protected fictional depictions in many contexts [6] [7]. However, obscenity is an established exception: if material (even fiction) meets the Miller test or federal child‑obscenity statutes (or is distributed to minors), it is unprotected [4] [1]. Some legal commentary and practice notes argue written fiction is less often prosecuted than visual material, and prosecutions against purely textual stories are rare outside isolated cases [8] [9]. Thus constitutional protection exists for many written fanworks, but it is not absolute where federal obscenity or child‑protection statutes apply [6] [4].
3. Nevada law: misdemeanors for giving minors obscene material, felonies for real‑child depictions
Nevada’s Chapter 201 criminal code makes it unlawful to exhibit, sell, or give pornographic or obscene material to anyone under 18; NRS §201.265 is typically treated as a misdemeanor with penalties that can include up to six months in jail and fines [2] [10]. By contrast, Nevada’s child pornography statutes (e.g., NRS 200.710, NRS 200.730) criminalize producing, possessing, or promoting sexual depictions of real minors as felonies—penalties here are far more severe and can include life terms or long felony sentences, and Nevada treats production and use of minors in sexual contexts as category A felonies in some instances [3] [11]. Nevada law also defines “harmful to minors” using prurient, patently offensive, and lack‑of‑value criteria that mirror obscenity analysis [12].
4. Practical risk: visual vs. textual content, distribution, and intent
Sources show prosecutors focus where visual depictions exist, where materials are distributed over the internet (interstate commerce), or where there is intent to distribute or to target minors—these factors elevate risk of federal prosecution [1] [4]. Several legal commentaries note that written stories lacking visual sexual depictions are rarely the basis for federal child‑pornography charges, though they may be judged obscene under state or federal standards in exceptional prosecutions [8] [7]. Available sources do not provide a categorical statement that privately possessed textual fanfiction depicting minors is always safe; they instead highlight case‑specific analysis based on obscenity definitions, medium, and distribution [8] [4].
5. Competing viewpoints, precedent and enforcement reality
Defense‑oriented commentary and fan‑community legal analyses emphasize First Amendment protection for fictional written works and note prosecutions are uncommon—OTW and other advocates have mounted defenses when platforms face legal pressure [8] [13]. The DOJ and conservative commentators emphasize the government’s authority to prosecute obscene depictions of minors and virtual images under federal law, and DOJ guidance explicitly names drawings and cartoons as prosecutable when obscene [4] [1]. That tension—broad free‑speech protection for textual fiction versus aggressive federal statutes for obscene visual and child‑related material—explains why outcomes hinge on specific facts, medium, and distribution channels [4] [6].
6. Bottom line and recommended precautions
If your material is purely textual and never includes visual depictions, available reporting suggests it most often remains within First Amendment protection, but obscenity determinations are fact‑intensive and prosecutions have occurred in outlier cases [7] [8]. If the material contains visual depictions of minors, is uploaded or transmitted across state lines, or is targeted or accessible to minors, federal exposure is real and can lead to felony charges and long prison terms [4] [1] [5]. For anyone in Nevada publishing or knowingly sharing sexual material with or to minors, state misdemeanor (NRS §201.265) and separate child‑pornography felonies apply—seek a lawyer for case‑specific advice [2] [3].