High court shuns comic speech case

August 7, 2003
By Franklin Harris
Earlier this week, the U.S. Supreme Court refused to hear an appeal of Jesus Castillo's 2000 obscenity conviction for selling a comic book. The court let stand his sentence of 180 days in jail, a year of probation and a $4,000 fine.

Although the decision is unsurprising, given how few cases the court agrees to review, it leaves a dangerous precedent unchallenged. As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

In September 1999, Castillo, manager of Keith's Comics in Dallas, sold a copy of "Demon Beast Invasion: The Fallen" No. 2 to an undercover police officer. The adults-only comic (an English translation of a Japanese manga) was labeled as such and was stocked in an adults-only section of the shop. The police officer was an adult. Several months later, as the Dallas Observer reported, police arrested Castillo and charged him with a Class A misdemeanor, punishable by up to two years in prison plus fines.

During Castillo's trial, the Comic Book Legal Defense Fund provided expert witnesses to testify as to the offending book's artistic merits. Susan Napier, an associate professor of Asian Studies at the University of Texas at Austin, explained that "Demon Beast Invasion," far from being simply a sex comic, is filled with symbolism and political themes.

Prosecutors didn't bother to cross-examine Napier, even though she had deflated their obscenity case. Under U.S. law, for a work to be obscene it must lack any serious literary, artistic, political or scientific value when taken as a whole.

As it turned out, prosecutors didn't need to cross-examine Napier. They simply ignored her and told jurors to do the same.

"I don't care what kind of testimony is out there," the prosecuting attorney said. "Comic books, traditionally what we think of, are for kids."

Mind you, kids had nothing to do with it. It was an adult comic kept with other adult comics and sold to an adult. It either was obscene, in which case selling it to an adult would be just as illegal as selling it to a child, or it was not. Unable to prove that the book was obscene, the prosecuting attorney deliberately muddied the issue. And the jury, made up of people too stupid to get off jury duty, fell for it.

Obscenity laws by themselves are bad enough. The problem with them is that you can never know that you've run afoul of them until it's too late. Because the only standard for obscenity is the "community standard" set by the jury that hears your case after you've already either broken the law or not. But the Castillo case is worse.

"This case bodes badly for the First Amendment," said CBLDF Director Charles Brownstein. "(T)he Supreme Court has allowed a precedent to stand that allows a man to be convicted of obscenity charges without adequate proof being presented that the work he is convicted for selling is constitutionally obscene. All because the medium the alleged obscenity was placed in 'is for kids.' "

The same argument could apply to animated cartoons as well. An animated version of "Demon Beast Invasion" is available on DVD and sold in many chain video stores. And, as "everyone knows," cartoons "are for kids."

Jesus Castillo's story has many villains: a politically motivated prosecutor, a clueless vice cop and the dumbest jury since the O.J. Simpson verdict. But the main villain is the pernicious idea that comic books are only for children. That has never been the case. Comics achieved their widest circulation during World War II, when U.S. troops abroad looked forward to care packages filled with cigarettes and issues of "Superman" and "Captain Marvel."

And with publishers always seeking new audiences, it certainly isn't the case now.

http://images.amazon.com/images/P/15...1.LZZZZZZZ.jpg
This is what the children see on the racks (no pun intended) at local comic/anime stores. I've bought anime "porn" -- and it ain't for the political message.

It IS obscene. That doesn't mean it is forbidden. It just means it goes on the aisle with the Playboy stuff (which also has very well-written political and social and style articles) and should not be sold to minors.

Duh!

_____________________
Here is an overview of the obscenity holdings by the Supreme Court. There is a constitutional right to own obscene material and have it in your home based on the Right to Privacy (Stanley v. GA, 1969). However, such material does not enjoy First Amendment (Right of Free Speech) protection. Local laws can limit its sale and distribution. Child Porn can be outright banned. Cities can pass zoning laws making all strip bars be located in one area, or making them maintain a minimum distance between themselves. Pasties can be required by local law. In New York you can see full nudity, but only where alcohol isn't sold, and where alcohol is sold the girls can only go topless on stage, and must be wearing a top when giving dances. While obscenity is protected by privacy in your home, it is not protected as speech you are allowed to say or show whenever you like.

As it should be.

[ 08-14-2003, 10:58 AM: Message edited by: Timber Loftis ]

It was in the adult only section of the comic book store and sold to an adult. If Texas starts busting up comic stores due to this ruling it will be back to the Supreme court in a few years.

I added to my post above. Check it out. There was apparently a statute prohibiting the sale of obscenity in the local are (or perhaps limiting what businesses can sell it). Here's the January, 2001 Dallas Observer article about it. Unfortunately, it still is not clear on what law was being broken. But, as I stated, laws can fairly be passed limiting the sale and distribution of obscene material.

The "adult section" you reference was for violent comics, but just because it was called an "adult section" in the store does not mean the local/state laws allowed the sale of "adult" (i.e. obscene) materials.

[ 08-14-2003, 11:02 AM: Message edited by: Timber Loftis ]

But the state never proved the material obscene. The expert witnesses brought in by the defense were not even cross-examined. All the state said in rebuttel is that 'comics are for kids'!

from another article on this I found:

Score one the first admendment!

<font face="Verdana" size="3" color="#00FF00">This is just courts pandering to parents to stupid to tell the difference between an adult comic and a kids one.

The line "Comics are for kids" is total BS. I watch cartoons, and read comics am almost 30 and most I would not give to a kid.</font>

[ 08-14-2003, 11:12 AM: Message edited by: pritchke ]

But then it seems the Dallas police department has bigger issues to worry about then dirty comic books:

mmm the plot thickens. Reading the article TL linked to I read this quote from the defense attorney:
I'd write that off as typical defense lawyer talk to seed reasonable doubt, but after reading the other article I posted about the bad drug busts it seems like there is something smelly in the Dallas PD ;)

In Roth v. United States (1957), the Supreme Court rejected the Hicklin test and ruled that the appropriate test for obscenity is "whether to the average person, applying <u> contemporary community standards</u>, the dominant theme of the material, taken as a whole, appeals to the prurient interest." Writing for the Court, Justice Brennan defined obscenity as "material which deals with sex in a manner appealing to prurient interest . . . having a tendency to excite lustful thoughts [or] as [a] shameful and morbid interest in sex."

See Emphasis, which I supplied. Thus, the local jury is exactly the body to determine what is obscene -- community standards. "The state didn't prove" -- careful, you are falling into the trap the defense created. The defense made its case and put up an expert. The prosecution pointed to the videotape cover (see above) and let the jury decide. :rolleyes: For most of us, there is little argument this is obscenity/porn. While I personally LIKE porn, I recognize the community's right to regulate it.

The "comics are for kids" bit by the state is meant to move the jury. It is not the appropriate legal on-point argument, but then closing arguments to juries are rarely about the pointy-headed legal minutae. They are about broader concepts. Plus, again, careful who gives you your info. Just because this is how the defense presented the prosecution's case does not necessarily mean it is ALL the prosecution said in its closing to the jury.

And, the Supreme Court decides on pure legalities, not on the effectiveness of closing arguments. The Supreme Court looked at the facts, saw that the jury decided it was obscene (fulfilling the community standard test), noted that local laws regulating obscenity are allowed to be passed under constitutional law, and let it stand.

It doesn't take a jury to tell me or you this is obscene. If there was a local law limiting the sale of obscenity, and no jury had yet ruled as to what is "obscene," would you really sale this videotape, thinking it was not obscene? [img]graemlins/1ponder.gif[/img] To quote John Stossel: Give Me a Break!

Besides, what he has done is exactly what should have been done to begin with -- he has simply conformed to local law.
Two mistakes here. (1.) The "chilling effect" is misapplied -- it only applies to material protected by the 1st Amendment -- obscenity by its very definition does not enjoy that protection. (2.) Ergo, "some legally protected has been chilled" is also incorrect -- it was never legally protected.

Bah! I see your point TL. So let me say in closing the people of Dallas are puritanical pinheads in need of a good lay ;)

I still think there is something stinky in the Dallas PD though. Would it not have been more civil of the police to inform the store owner they should remove the comics? But then they would not have gotten all the headlines showing how they are 'protecting' the fragile minds of the youths of Dallas from these nasty comics [img]graemlins/laugh2.gif[/img]

Agreed. My wife prosecutes misdemeanor cases regarding prostitution. Yesterday, she ran across a cop who makes 90% of his busts at Asian massage parlors. He is an interesting character -- he hates the parlors yet he loves his work. He sometimes is forced to go 1 or 2 times prior to the final arrest, just so he can let them think he is a regular customer.

At these parlors, $150 average gets you a full body "massage," including below-the-belt action. If you ask for more, another $100 buys oral sex, and a big tip on top of that and she'll climb on top of you. Now, mind you, when he goes to these parlors, he is spending $150 tax dollars minimum and getting a free hand job. He does this a couple of times, then he asks for more, they offer oral sex, and he arrests them. Well, as I said, he is certainly one of those conflicted persons who hates the parlors yet loves his work. :rolleyes: Can you believe my taxes fund this?

My wife asked him about the "Johns" (guys buying sex), who are the REAL problem (if there IS a problem -- LOL), because the women are really in a powerless position, and are only doing what the must to survive in many instances. Well, his answer is that the women are easier to catch. Well, if that answer isn't unsatisfactory enough, there is also the implication he simply LIKES catching them more. :D

Here's the real kicker. The punishment the women gets: she pleads guilty, takes 6 months "supervision" and no conviction is recorded. Second and later offenses, depending on how much time has passed, will result in a similar sentence or, at most, a conviction with the punishment being "time considered served" (TCS -- only the night(s) spent in jail awaiting the initial bail hearing).

So, we are funding one horny police officer, arresting a poor woman, paying an attorney to prosecute, paying a judge to sit there -- all for what we all know will result in a mere slap on the wrist every single time. ECONOMIC WASTE. Why we aren't revolting in the streets I don't know. Wait -- I do know -- we're too busy having our brains numbed by TV and Starbucks to care or bother to investigate the reality of today's "government."

How's that for some insightful inciteful thought?

[ 08-14-2003, 11:54 AM: Message edited by: Timber Loftis ]

Even worse is that in many of these 'massage parlors' the girls are litterly slaves. In a recent report I read they estimate there are 200-300 thousand such 'sex slaves' in the US alone. One of the main reasons this kind of thing can continue is due to the fact that prostitution is illegal. Sad :(

[ 08-14-2003, 12:05 PM: Message edited by: Rokenn ]

<font face="Verdana" size="3" color="#00FF00">Wouldn't it be better to have a system that leave the prostitutes alone, arrest John's, and pimps. For a first offence have them take a program to show how their actions affect the lives of others, including there loved ones. For many of these people it is a problem much like smoking, or gambling, or excessive computer gaming. Then for second offences it is jail time as they are probably not going to change. The program for john's seems to work as most after taking the program rarely do it again.

The main idea is to do away with the customer base, and has been more effective than the other way around.
</font>

[ 08-14-2003, 12:08 PM: Message edited by: pritchke ]

In Oakland, Ca they had a policy for a while of seizing the cars of johns on the spot when arrested. Try explaining that to the wifey when you take a cab home ;)

Wouldn't legalized prostitution be better? I mean, you can sell sex if you're making a porno -- you get paid to perform sex, period. You can sell your sex for millions if you're Halle Berry making Monster's Ball, or for tens of thousands if you're Tera Patrick. In the case of Tera Patrick, she can, and has sold her sex in a gang-bang scenario. (Or, look at the ring Kobe bought his wife. :D [img]graemlins/kidding.gif[/img] ) But, if you're just some poor Jane on the street trying to get $300 to give your treasures to some nasty wanker, you go to jail. STUPID.

NOTE: TL has moved from "what the law IS" to "what the law SHOULD BE" and is now wearing a different hat than before. Inconsistencies may be glaring. ;) (But they aren't yet. No matter how a community regulates obscene material, a contract between two people to go somewhere and perform a sex act privately is a 4th Amendment/privacy/liberty issue, not a 1st Amendment/speech issue).

[ 08-14-2003, 12:19 PM: Message edited by: Timber Loftis ]

<font face="Verdana" size="3" color="#00FF00">Prostitution is legal up north, it is just illegal to pay for it.
</font>

Zounds. Sounds hard to enforce.

Zounds. Sounds hard to enforce. </font>[/QUOTE]But then if someone is giving it away for free is it really prostitution? [img]graemlins/1ponder.gif[/img]

<font color=cadetblue>Why would people buy this stuff??? </font>

joining in late again (must be the time difference)
and trying to have an opinion on all the topics

Most important things first.

I think prostitution should be legal (here in Austria it is) because thus it can be better controlled. Some comedian once said that prostitution was "a victimless crime". Well not really but it can be if it is legalized.
1. The John risks getting STDs (don't say he knows the risks drug addictsdo too)
2. The John risks being blackmailed
3. The prostitute also risks her health (but may have no other job oppurtunity so it is either die on HIV or die on TBC)
4. The prostitute may be in a slave-position to her pimp being denied basic human rights

IF prostitution was legalized the health risk could be reduced by regular screenings (as it is done here and probably on other countries with legal prostitution) and the blackmail risk while still being applicable on a personal ("I tell you wife") or public ("the mayor went to a brothel") base would no longer bear the criminal aspect (i.e. you can't be jailed for it).
The slave-position of the prostitute can be bettered but not solved because you're basically in a slave-position in every minimum-wage job.
With existing legal prostitution illegal prostitution (no health screenings, no green card, no taxes) won't stop but it gets unpopular with the legal side of the business and thus is seriously reduced.

Now while most logical aspect speak FOR a legalization the question wheter or not it should be done is a moral one which I do not dare to answer.

Why, to satiate our prurient interests, of course. ;)

ooops forgot the original topic:

I'd consider this comic obscene! I'd rather not hve it on public display where children can see it. But I have seen lot worse in adult sections of book or video stores and therefore would consider it fit to be there. If however the state decided on a moral ground (the same that outlaws prostitution) to forbid selling this material in stores the transgression is obvious.

I'd like to know if there's a total selling ban on these things or if it's just stores meaning it would be legal to order it though the web for example.
If it is the latter I don't really see the big wrong Supreme Court was doing that storekeep. However if it is a complete ban we now face censorship and have ot ask ourselves if it is correct in this particular case.

The question is whether publishing of these comics or not should be based IMHO on if it poses a threat to society. I believe that NO book really does because the majority of a society usually has sound (even if not always bright) minds and therefore isn't really endangered.
IMO complete censorship is actually more a threat to society than any book can ever be.
In my country (Austria) for example private ownership of certain NS-material (flags, insignias, medals, copies of Mein Kampf) is forbidden (but in small cases a pecadillo) and public display is subjected to severe punishment. Yet you can read "Mein Kampf" in any major library and watch collections of the aforementioned material in museums. There is no research ban on that subject the government is just taking proper precaution that one of the greatest tragedies in our history never happens again by outlawing the worship of mass-murder. Is this a setback for freedom of speech? Yes. But it is also the right thing to do morally.

There was another case recently, where a couple in California was arrested for shipping fake snuff/rape porn to Pennsylvania that was ordered on the internet. How can one enforce community standards on the world wide web? Obviously the community standard for porn is much different in L.A. than rural Pennsylvania.

http://dc.internet.com/news/article.php/2246661
[ 08-14-2003, 04:59 PM: Message edited by: Chewbacca ]

Yes, but if you sold it to rural PA online, it is as if you'd opened up a "brick and mortar" storefront in PA.

This comes down to jurisdiction -- and the jurisdictional rules regarding online selling state if you sold there, you are subject to the rules there and can be hailed into court there. Beware.

What about webcasts of "obscene" videos? Is that the same as opening a movie theatre in another community? Is not downloading one of these videos (or comic books) the "same" as ordering a copy? I sense a can or worms...

[ 08-14-2003, 05:19 PM: Message edited by: Chewbacca ]

That sounds extreme burdensome to online retailers. How is an outfit in Indiana going to know the community standards of a burg in Florida?

Edit:
Also this smacks of states regulating inter-state commerce which I thought was a no-no. And what if the material was ordered from overseas?

[ 08-14-2003, 05:38 PM: Message edited by: Rokenn ]

That sounds extreme burdensome to online retailers. How is an outfit in Indiana going to know the community standards of a burg in Florida?

Edit:
Also this smacks of states regulating inter-state commerce which I thought was a no-no. And what if the material was ordered from overseas? </font>[/QUOTE]The landmark case bringing foreign goods within the purview of state lawsuits was litigated against Asahi Motors and involved motorcycle parts.

If you want the business from the locale, you are governed by its rules. If and India Company doesn't want to be subject to US laws, it should simply not take orders from the USA.

But, by making use of the benefits of the jurisdication, and by availing yourself of its commerce, you subject yourself to its laws and often to litigating in its forum. Of course, few and far between are the USA man-on-the-street litigants who will chase down the Indian company, properly serve them legal papers, and then fight through all of their jurisdiction-challenging motions.

But, online ordering is simply a large mail order system. It has always been the case that if you shipped a defective product to Nebraska, and it blew up in the face of the recipient, you are on the hook.