Manga ruled obscene

[Rokenn]

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.

[Timber Loftis]

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 ]

[Rokenn]

Originally posted by Timber Loftis: 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! [/QB]

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.

[Timber Loftis]

Originally posted by Rokenn: 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 ]

[Rokenn]

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:

Castillo, who has continued to work at the shop, says the matter has changed the way Keith's does business. The store stopped carrying anything that might be considered X-rated, and now carries only R-rated comics. They are kept in their own 18-and-over section, just as Demon Beast Invasion had been. "Considering that there's a whole Catch-22 in this, it's difficult to figure what's offensive and what is not," says shop owner Keith Colvin. "Until a jury pronounces something obscene, it's not obscene." He says he has taken a cautious approach and drawn the line on the conservative side, carrying no material that might be considered hard-core or strictly adult. "That's the chilling effect people talk about," Brownstein says. "Their right to sell, and the right of people to buy, some legally protected material has been chilled."

Score one the first admendment!

[pritchke]

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.

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

[Rokenn]

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

A year ago Dallas police were caught making cases against more than 70 defendants based on fake drug evidence. Now the city manager and the police chief are moving toward a system that would raise new secrecy walls around drug testing and make it harder for anybody to catch the department the same way again. ... The police department's version of the scandal from the beginning has been that innocent, unsuspecting, naïve narcotics officers were duped by wily confidential informants (CIs) who were planting fake drugs on defendants in order to earn hundreds of thousands of dollars in snitch fees. That's their story. We don't make this stuff up. We hope the narcs were provided with counseling to help them recover their trust.

[Rokenn]

mmm the plot thickens. Reading the article TL linked to I read this quote from the defense attorney:

"I don't doubt for a second that they sent people [into the store] looking for stuff and they haven't found anything," he says. "Keith's takes special orders, and if the person who orders it says, 'I don't want this' then the buyer is stuck with it. Our best determination is that's what happened here with that book. They're not stocking and selling it."

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

[Timber Loftis]

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 contemporary community standards, 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. 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.

Originally posted by Rokenn: Castillo, who has continued to work at the shop, says the matter has changed the way Keith's does business. The store stopped carrying anything that might be considered X-rated, and now carries only R-rated comics. They are kept in their own 18-and-over section, just as Demon Beast Invasion had been. "Considering that there's a whole Catch-22 in this, it's difficult to figure what's offensive and what is not," says shop owner Keith Colvin. "Until a jury pronounces something obscene, it's not obscene."

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.

"That's the chilling effect people talk about," Brownstein says. "Their right to sell, and the right of people to buy, some legally protected material has been chilled."

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.

[Rokenn]

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]