There’s lots of outrage in the comics blogosphere, because the Supreme Court declined to reconsider a finding that the comic book Demon Beast Invasion (issue two) is obscene. Jim at Unqualified Offerings writes:
Peter David – the much-acclaimed writer who’s associated with the Comic Book Legal Defense Fund (CBLDF) – concurs:
A terrifyingly dangerous precedent has now been set. The Texas case essentially strips First Amendment protection from comics. There have been various instances in this country where titles as diverse as Spawn, Spider-Man and Elfquest have come under siege. None of those attacks ever went as far as this one. But with this law on the books, who knows how aggressive moralists can get in their pursuits to make sure that you won’t have the opportunity to buy whatever comics you want to buy.
Damn, sounds bad, doesn’t it? Fortunately, it’s bullshit.
First, despite Jim’s claim, he has no way of knowing what the jury bought or didn’t buy. It’s quite likely that they examined the comic book, listened to the testimony, and decided that Demon Beast Invasion was obscene.
To be obscene in the United States, a work needs to meet the three-part Miller standard. The Miller standard asks:
- (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.
Much has been made of the two expert witnesses, who the defense called to try and establish that Demon Beast Invasion has “serious literary, artistic, political, or scientific value.” But it’s plausible that the jury decided that the testimony of the two experts simply wasn’t very credible. Frankly, from what I’ve read, I don’t find their arguments very convincing. (I say this despite the fact that one of the experts is a friend).
- Both experts claimed that the worth of Demon Beast Invasion (issue two) couldn’t be judged without having also read issues one, three and four, but that’s not very plausible. After all, issue two was sold alone, as a distinct unit (the store didn’t even have the other issues available, according to the testimony of the Detective who bought the comic book). Comic books are sold in issues, and fans are entirely used to judging artistic merit by reading just one issue. Professionals do it too; it’s not unusual for comics to win awards based on only a single issue of a longer-running serial.
- Both experts testified that Demon Beast Invasion reflected Japanese culture, and used themes that were common in works of Japanese literature (although one expert, Scott McCloud, admitted under cross-examination that Demon Beast Invasion issue two consists of “basically sex”). But inevitably, even the worse imaginable piece of crap will draw on themes and reflect something of its cultural context. That isn’t enough to show serious literary or artistic merit (unless one wishes to argue that all art, regardless of how awful it is, has such merit).
- One expert, Professor Susan Napier, claimed that Demon Beast Invasion was beautifully drawn. I’ve seen artwork from DBI reproduced online, and from what I’ve seen it’s badly drawn hackwork. If I could recognize that, so could the jury.
- I’ve seen several people – including Peter David and the CBLDF – claim that there was no testimony to contradict the expert testimony. But that’s simply not true – the policeman who bought the comic testified that he felt the comic had no serious artisitc worth, and met the requirements of US obscenity law. One could argue that his testimony shouldn’t have been allowed, because he’s not an expert – but in order to argue that, the CBLDF lawyers would have had to have made that objection during the trial. They did not. Maybe that was an error on the CBLDF’s part – but if so, they shouldn’t blame the jury.
The bottom line is, the jury believed their own eyes. They were given a comic book to read featuring demons variously seducing/raping humans; the comic had no characterization to speak of, lousy drawing, and had nothing to say. It was an empty-headed collection of mean-spirited, degrading sex scenes. It had no artistic merit – at least, not to anyone who doesn’t consider the idea of artistic worth to be more than a joke.
(And speaking frankly, it’s hard to imagine my friend the expert witness – who has very refined taste in comics, and has often pointed out to me this or that comic book that was artistically interesting or exciting in some way – ever saying to me, “hey, Barry, check out this issue of Demon Beast Invasion, it’s really good.”)
* * *
It’s also been claimed that this decision is dangerious because it sets a precedent that comic books are for kids, and therefore should be judged by a different standard than other media.
No such precedent was set. In fact, the court never ruled on that question one way or the other. Why not? Because the CBLDF’s lawyers, once again, failed to object to such testimony during the trial – and thereby gave up the right to argue that such testimony is or isn’t allowable.
So – for better or worse – the Dallas Court of Appeals’ decision (which is the one that carries the precedental weight) on this case doesn’t consider this question one way or the other.
* * *
The fact is, the court did not censor Demon Beast Invasion because it was a comic book. They censored Demon Beast Invasion because it is obscene and not protected by the first amendment. The idea that this decision puts Watchmen or Maus – or Peter David’s work, or my own – in any danger is absurd.
The problem for Peter David and the rest of the CBLDF crew is, Demon Beast Invasion is obviously obscene, misogynistic crap. It has no value of its own. No one’s life will be lessened because they lose the chance to read it, and the political and artistic discourse in the United States will if anything be improved by a lack of Demon Beast Invasion in the mix.
So instead, we get the slippery slope argument: This isn’t a case about Demon Beast Invasion! They’re going to take away first amendment rights from all comic books!
Get real. The jury found no artistic merit because there was none to find. If a comic book that actually had some artistic merit had been under issue – one of Robert Crumb’s pornographic comics, for example, or an issue of Naughty Bits – the defense would have had a much easier time, because then they could have made substantial, reasonable arguments for artistic merit.
But it’s unlikely that any Crumb comic would ever get to that point – because prosecutors and police don’t like losing cases, and don’t tend to pursue unwinnable cases. Which is almost certainly why the cop picked out Demon Beast Invasion, rather than picking out Crumb or Naughty Bits.
Just to be clear, I’m not saying that all obscenity convictions are reasonable. There have been unreasonable decisions – and those are battles worth fighting. It’s true that an obscenity conviction like this one is a waste of courtroom time and taxpayer money. But it’s also true that defending Demon Beast Invasion is a waste of the CBLDF’s time and their contributors’ money.
And to claim that this decision – which says nothing more than that the same old obscenity laws that have always applied, still apply – has suddenly put all comic books in danger of widespread, arbitrary censorship is nonsense.
UPDATE: Whoops – I originally credited the decision to the Fifth circuit. Actually, the decision was made by the Dallas Court of Appeals (which is “technically, the court for the fifth of fourteen appellate judicial districts in the Texas state-court system”). I’ve updated the post above. Thanks to Beldar for providing this info in comments..
Amp, I do so adore you with evey fibre of my being. :)
I notice the new page header… Cute.
Where to begin? Maybe with the expert witnesses. I’m no legal expert (especially on US law, which is foreign to me as a German), but the way I read the decision to which you linked, the defense actually had objected to the testimony of the police officer during the trial, but that somehow that didn’t count because they hadn’t objected to his testimony again after their first objection had been overruled. Also, it appears that this witness did not even explicitly state that Demon Beast Invasion #2 had no artistic etc. merit or attempted to refute the contention that it had, but the way I read it the 5th Circuit decided that he had implicitly stated that it had no artistic etc. merits because he described it as “obscene”. Literary and artistic merit is of course notoriously hard to define in any case and one person’s masterpiece is another person’s badly drawn and/or written hackwork. Which takes us into the fundamental arbitrariness of the definition of obscenity. (But I still can’t hold back the comment that I’m inclined to take the word of an expert witness who has actually read the book in question over someone who relies on second and third-hand information plus some (a handful? more than half the pages of the issue? random? selected by someone else with a view to showing the most outrageous?) samples of artwork.
There are also a few other aspects about this case that trouble me. For instance, the defendant apparently was persecuted for selling a book of which he had been unaware that it was in stock at his shop, one that may in fact have been first brought into the shop by his predecessor as manager (the book according to his statement had been released in 1998 and he himself had been manager for three years). And never having looked inside, how was he to know that the contents could or indeed should be considered obscene?
While it is “technically true” that the verdict of the 5th Circuit does not explicitly set up different standards for comics than for other forms of entertainment, but it does seem to condone selective and arbitrary prosecutions, and given the current state of the comics market, I can’t help feeling that this will mean that comic shops will be easily targeted. The nuisance value and the costs in time and money of a legal defence should be enough to make a lot of shop-owners and managers think twice about what to sell at their place and what not. I happened to discuss this and other cases (e.g. the one where someone landed in court for selling an issue of “Elfquest” to a minor) with an American friend who works at my local comicbook shop, and he said that if he owned a comic shop in the US, he would not stock any comics for adults at all because it was simply too dangerous. And so a successful prosecution against a less well known product (at least in the US, for all I know Toshio Maeda may be a bigger star than Robert Crumb in Japan) thus may serve to deter other comic-shop owners from stocking comics with adult content by any artist (or by most artists with the exception of a handful where you can fairly safely bet that their names are big enough to deter your local DA from launching a prosecution for selling their works).
The case also made me wonder how someone is supposed to judge whether or not a given comic is likely to run afoul of “contemporary community standards” before s/he is prosecuted. In this case the defence pointed to comparable material being sold freely at other places in the area, but to no avail. Apparently it is okay to pursue one person for selling obscene material but not the others (at least I have not yet heard that the prosecutor in question ever intended to prosecute the sex-shop owners and the newsagents who sell “Penthouse” in that area).
I’m sorry, but if a retail shop owner doesn’t at least suspect that a comic book consisting of nothing but sex – specifically, demons raping humans, including penetrating women with tree roots – might just possibly run afoul of local obscenity standards, then they’re an idiot.
I might agree with you that it was unfair of the court to not take Jesus’ word for it that he didn’t know the content of the comic. But that’s not really the issue I’m discussing in this blog entry.
Regarding the Elfquest case you refer to, even the CBLDF attorney said “I have never seen a prosecution as unwarranted, baseless, and bizarre as this case.” To claim that as a typical example of what comics face is clearly unwarrented – even the “sky is falling” folks at the CBLDF thought that was bizarre!
More importantly, this case didn’t even make it to trial – all the charges were dismissed at pre-trial. Why? Because there was no way in the world prosecutors could make a charge that this was obscene stick. The Elfquest example you bring up actually supports what I’ve been saying – comics that have serious artistic merit aren’t in danger of being found obscene.
You write, “the way I read it the 5th Circuit decided that he had implicitly stated that it had no artistic etc. merits because he described it as ‘obscene’.” I have no idea where you’re getting this from. According to the judge’s ruling, “Reynerson did not believe the book had any literary, scientific, artistic, or political value.” Presumably, the court knows this because Reynerson said so during the trial.
Finally, it was the jury – not the cop – who, in the end, decided that Demon Beast Invader (issue two) had no serious artistic merit – and they read the entire comic (or should have, if they took their duties in good faith). The defense presented two experts who had a fair chance to persuade the jury that DBI wasn’t worthless crap; but in the end the experts weren’t persuasive. As I argued in the post you’re responding to, that’s probably because the arguments the experts used weren’t very persuasive either. (Not that I blame the experts – no one can make a silk purse out of a sow’s ear, after all).
Beautifully written and argued. The only correction I have to offer is a very slight one: Mr. Castillo’s conviction was reviewed by the Dallas Court of Appeals, which is indeed, technically, the court for the fifth of fourteen appellate judicial districts in the Texas state-court system. It’s not, however, usually referred to as the “Fifth Circuit.” That’s generally understood to mean the U.S. Court of Appeals for the Fifth Circuit, headquartered in New Orleans, which reviews decisions from the federal district courts in Texas, Louisiana, and Mississippi; it was not involved in this case because Mr. Castillo was tried and convicted in a Dallas County Criminal Court and not its federal-court analog (which would have been the US District Court for the Northern District of Texas, Dallas Division).
Thoroughly confused yet? It doesn’t much matter. On issues of federal constitutional law like whether something is “obscene” or instead protected by the First Amendment to the US Constitution, purely state courts like the Dallas Country Criminal Court and the Dallas Court of Appeals are still bound to apply federal law (as interpreted by the US Supreme Court and, for that matter, the US Courts of Appeals a/k/a “Circuit Courts” like the Fifth Circuit). The fact that the Dallas Court of Appeals is a state rather than federal court does mean that its decisions are even less likely to be cited or accepted as precedent outside Texas, but since nothing in its opinion made any new First Amendment law — and it certainly didn’t establish that comic books lack First Amendment protection! — this is all nitpicking on my part, for which I apologize.
Again, congratulations on your nice work, Amp, in this and the follow-up pieces, and thanks for the link in turn to my own blog on this topic.
I must object to the reasoning; the Miller test is ripe for abuse, as areas with more conservative “community standards” are likely to go after more nonmainstream works, such as fetishistic stuff, gay porn, etc.
I cannot see how Miller can be applied consistently, just as I cannot see the death penalty applied in a fair and consistent manner. Both are fatally flawed doctrines.
Hmmm, but at the time Mr. Castillo appears not to have known the content of “Demon Beast Invasion” #2, so I find it a bit harsh to fault him for a decision he did not in fact make. Obviously one could fault him for not looking at the issue, but then maybe his mistake was that he trusted the previous manager too much (at any rate I found it worthy of note that until the moment the police officer put the book on the table, Mr. Castillo appears to have believed that they did not have Demon Beast Invasion in stock at his shop). In any case, how is this supposed to work in everyday life? If I understand you correctly, a comic shop manager must read every issue of every adult series his or her shop carries (in this case it apparently would not have been enough to check out #1 – which by all accounts was more “harmless” and maybe even not to be considered obscene – and then continue to order the series without reading issues #2-4. But what puzzles me even more is how a single person is to decide what might or might not run afoul of local obscenity standards, especially if they are enforced as haphazardly as they were in this case. Oh sure, you could buy stuff that was easily comparable to DBI at the local sex-shops etc., but somehow the courts expected him to guess that he could be prosecuted for selling that particular book anyhow. I suppose he would have had to have followed all obscenity cases in the local media, but of course the question is how much would actually have been reported (if the defendants in those cases would not have contested their fines, who knows if their cases would have been reported at all or in sufficient depth to clue in readers/viewers what was currently being judged obscene in their part of Texas). Maybe Mr. Castillo should have sent everything he had that was intended for adults to the local DA’s office to have it vetted? I’m sorry, if it is enough to merely SUSPECT that something JUST POSSIBLY might run afoul of the local authorities, then the inevitable result will be that comic dealers will err on the side of caution and even some titles that would not normally be considered obscene under community standards will be taken off the racks. And as cases like the Elfquest (extraordinary though it may be) one illustrate, there are an awful lot of things that might JUST POSSIBLY cause trouble with your local prosecutors. (Given that the prosecution dropped the second obscenity charge against Castillo, I have to wonder if such an intimidatory effect is just what the case was about).
I simply don’t buy the rationalization that “comics that have serious artistic merit aren’t in danger of being found obscene” — all the Elfquest case (and the lack of prosecutions involving e.g. Robert Crumb) would suggest is that comics by well-established and famous creators (who also happen to be long-established in America) are currently not in danger of being found obscene. But could a relative unknown be just as confident that his/her artistic merit would be honored in court?
Where did I get the idea that Reynerson had not actually stated that the book had no artistic etc. merit? Well, as I said I’m no expert on US law and may have over-interpreted, but this sentence in the verdict struck me as odd:
“Thus, once Reynerson testified, without objection, that the material was obscene, he necessarily testified it lacked serious literary, artistic, scientific, or political value.”
Would making such a conclusion have been necessary if Reynerson simply and actually had said that the book lacked such merit? Or indeed explained why it did not have such merit?
But the underlying problem is of course that the decision whether something has artistic, literary, scientific or political value is to a large extent arbitrary. And the majority of a jury may come to a certain conclusion, but how are we to say they are right? Or even just right by the by all appearances inconsistently applied standards of Dallas, TX? How do we know that they did their job properly, how can we be so sure that the “comics are for kids” argument did not at least contribute to their decision?
The fact is, the court did not censor Demon Beast Invasion because it was a comic book. They censored Demon Beast Invasion because it is obscene and not protected by the first amendment.
Then why were nearby adult bookstores left alone?
It was a combination of the two, Barry – the belief that DBI didn’t pass the Miller test combined with the belief that comics stores should cater primarily to children and therefore aren’t appropriate venues in which to sell adult-oriented material. As far as I know the CBLDF never argued the first point – the odious book was special-ordered by the undercover officer in question (hmm, sounds like a sting operation to me) and was sold by an adult to an adult in pretty much a brown-paper-bag situation.
I found everything you put down in your article as tripe. I am offended, and with your logic, if someone is offended, we should have it removed. So please remove your article now.
Amp, you missed the main point by a mile. The issue wasn’t that DBI was obscene or not, because it sure as hell is. The REAL issue was that Jesús Castillo, facts about cashiers not knowing about stock aside, was charged with selling porn TO MINORS, DESPITE the fact that the book was CLEARLY in the “Adults only” section, and that the customer was clearly an adult.
Assamite, you’re simply wrong. He was not charged with selling porn to minors; he was charged with selling obscene materials (to an adult).
Reason, you have failed to understand my logic.
yes, there is reason to panic. we live in an age where people are encouraged to use any excuse they can to control others. i work in a comic book store. we do have adult comics. children are not allowed to purchase them, indeed, no one is allowed behind the counter except for those working. we have received calls from obvious children asking if we had porno, and one of the stores in the chain was targeted for pickting (am i spelling that right?) and pampleting. the protesters came in the store and put bible tracts behind every third comicbook in the store. while the manager was amused and priced the tracts for sale, we cannot price an obvious sting. we cannot regain money back from someone targeting the store because they think they have a lock on censorship and should choose what the rest of us read. go back and read farenheit 451 and 1984 and look around. if you really want a wake up call, read atlas shrugged.
“…read atlas shrugged.”
You almost had me until that last bit. Ayn Rand is almost as much a disgrace to the First Amendment as Larry Flynt. :p
Comic Book Morality for Comic Book Minds.
It’s not about Virtue. It’s about Power.
Whatever your thoughts on the impurity of a comic book, I fail to see how ANY comic book could be as damaging to our society as Fox News, or MSNBC, or CNBC, or CNN, or 99% of talk radio — all of which are protected by the first ammendment and all of which are truely Obscene in the worst possible ways: they use the power of their status and money to spread Lies, Confusion and Fear.
Our society has almost always seemed to me to be more concerned with trivialities — especially sexual trivalities –than substance and reality. I think it is very much the Human Condition. In this case, the sex isn’t even actual sex, like sperm-sex on a blue dress, but sex in a comic book. The sex ISN’T REAL. It is FANTASY IMAGINED SEX, sex with “demons.” Although I have not seen this comic book, I’ll bet the sex is with Nubile White Girls or Asian Girls, all of them looking like big-eved twelve or thirteen year old heartbreakers, except for having 36C boobs, and too many of them having, eventually, a “good time.” If that isn’t a Christian Right wet dream than Monica Lewinsky doesn’t like El Meato Cigars. Also, if I am correct about the “victims” of the sexual congress with “demons,” the objections are also probably more than a little racist. Would the cops have given a rats ass if it had been sex between “demons” and young black girls? I’ll bet not.
I would not have thought it possible twenty years ago, but, more and more, our society reminds me of monkeys in Borneo who set up a giant racket and hurl excrement at passing strangers. The monkeys live in constant fear of attack (plus, some naturalists think, they just like to throw shit). In monkey society the fear at least has a basis in reason. They live in a jungle. There are a lot of creatures who would like to eat a monkey.
In our society, fear does not have a basis in reason most of the time. Nonetheless, we are encouraged to be afraid. Afraid of Terrorists, afraid of Iraq, afraid of Drugs, afraid of Being Poor, afraid of Getting Sick, afraid of Others — an endless list, to which, with a nod to FDR, I now add a Fear of Fear Itself.
With the rise of Christian Wackos and Ashcroft Wackos and Congressional Wackos (but I repeat myself), with ignorance and superstitution increasing by the second, with DA’s who care not a whit for justice but only for victories, and twisted politicians all too willing to use these building blocks of facism, we now have many citizens who, like Borneo monkeys, also like to throw shit, and are encouraged to do so. Hanging from the rafters of the media and courts, hooting about Morality and Godly Commandments, reaching around their backsides for a copious handful of the only thing they can actually create in abundance, they hurl it at the Constitution and their fellow citizens who they find wanting, while claiming Trancendant Virtue. Humans claim to love and defend freedom, but many, many people secretly don’t want others to have it. WE want to read what We want to read. It’s those OTHERS who have to be protected. Damn straight!!
Comic Books and Demons indeed!! Give me a break!!
Thank you for your time.
David Winn
dwinn@austin.rr.com
To dismiss the “slippery slope” charge because you find no artistic merit in DBI is ridiculous, and I sense your viewpoint is based on your very strong feelings regarding feminism and feminist causes (as noted on your blog). DBI may be misogynistic, but it should still be protected as free speech – even if you find no artistic merit in the work.
As a Jew, I supported the ACLU’s defense of the nazis to march in Skokie, because I truly believe that speech (with very few exceptions) should always be protected even if that speech denies my right to exist.
If offensive speech isn’t protected, what’s the point?
Debating artistic merit is a waste of time. Check out some of the minimalist pieces at any museum of modern art for a primer on what constitutes artistic merit. To suggest that the jury would have found artistic merit in Crumb’s depiction of mother/sun and father/daughter incest (Zap #4, I think) or any of Milo Manera’s erotic work is vastly over-estimating the intellectual ability of a Texas jury. Mr. Castillo should not have to spend 6 months in jail for selling an adult comic to an adult.
Not only will this case provide an incentive for ambitious, headline hunting, local prosecutors to pursue similar cases (watch out Ivan Brunetti), but it will serve as a very tangible form of prior restraint to the comics community – particularly embattled retailers struggling to survive.
Riffin’ man: Clarification – Castillo didn’t get 6 months jail time, he got a year probation. Otherwise, I agree with your general point: there’s no reason to think that other works you or I happen to find obvious value in would look like anything other than filth to a jury. No doubt you could get more experts to testify in favor of Crumb than for Demon Beast Invasion, but I suspect a jury who’s never heard of this stuff might just dismiss such experts as highfalutin filth-lovers… especially if the prosecutor is telling them “kids might see it, that’s all you need to know.” Of course prosecutors prefer easy targets like this and Mike Diana, but this recent decision – while it doesn’t literally constitute any new legal precedent – may well convince them to push their luck.
Also, Manara is an interesting, difficult example: a stunningly proficient artist whose work alternates between evocative surrealism, vacuous but harmless stroke-fodder, and really disturbing humiliation fantasies… often within the same book or even the same page. Suppose I think his book “Click” is mean-spirited porn whose merits (other than the nice drawings) are hard to defend, while “Dies Irae” is a fascinating book in all kinds of ways (while including several comic pornographic interludes) that would stand a good chance in court. If I’m a store owner in a town with an itchy DA, I’m not likely to trust in such distinctions; more likely to take Manara off the shelves, period.
I realized after I posted that he did not go to jail.
In looking through my underground/alternative collection, I think a 20-30% of the material could be deemed offensive by uptight, religious puritanical types. A few examples: The Leather Nun (title and cover more “shocking” than content, but I bet it would get a rise from some of those religious wackos in Texas.) , Bizarre Sex, and just about all of S. Clay Wilson (who I am sure is not one Ampersand’s favorites).
Obscenity laws (“I know it when I see it”) are designed to be vague as evidenced by the woefully inadequate Miller standard (though I guess a purposely vague standard is better than a detailed, restrictive standard.) Therefore, the benefit of the doubt ALWAYS has to fall on side of free speech, and whenever it doesn’t we’re all tobogganing down that slippery slope.
Ever get really into what it was like for somebody like Galileo? Shrouded monks in dark brown shadows, corpulent prelates oozing alpha-pheromones, and the truth as you know it, as it is, ravels, unravels, feathers away into doubt and uncertainty. What you know to be right begins to dissolve, until there’s nothing but the will left, and some decision-making mechanism that weighs your chances of coming through the auto-da-fe.
Community is what counts here. This culture is a community that force-fed women who turned to hunger strikes to get the vote. To get. The vote.
That’s the community, which has now moved on a little bit, that will decide the standard for distinguishing art from obscenity.
It doesn’t seem to be biologically possible to disqualify an entire community. To say well, you guys are stone nuts and have been all along so shut the fuck up and sit down.
It’s an obscene misogynistic culture. That point is established fact. Also racist, and some new term is needed for a culture or an individual willing to sacrifice the entire future of its own species for immediate hedonistic gratification. That trumps sexual obscenity in my book.
Certainly images of sexual violence, especially the violation of innocence, the glorification of destruction that that represents, is counter to health, individually or culturally. But we’ve all inherited the sickness of the past, processing it, adapting to it, making it fit our lives as they are. Take the sex out and it’s a pass. All the way. The words kill death and die are culturally almost invisible. The word fuck, which means essentially the act that brings us into being, is obscene still. A woman’s breasts are obscene still. Women are still arrested for feeding their children publicly. From the breast. People die nightly on primetime TV. No one fucks on prime time. The culture is sick and should be confined until it heals.
There are (at least) two questions here: whether the Miller test (and/or obscenity laws in general) make any sense (and/or are consistent with the U.S. Constitution or your favorite other document), and whether or not the Miller test was properly applied in this case. I read Ampersand as supporting only the latter claim; that the Miller test as it exists was applied correctly in this case.
I would be curious to hear explicitly from Ampersand about the first question; whether Miller makes sense in the first place (I’m a regular but not a constant reader, so if it’s been addressed here before I apologize for not recalling it). I think Miller is both unconstitutional and fundamentally dumb-assed. As to whether it was correctly applied in this case, I don’t think I have enough information to know, and find Amp’s comments at least plausible. But obscenity shouldn’t be a crime in the first place, for all the obvious reasons…
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I just heard of that case (as an example of why the comics industry should tread lightly in a discussion about the revelation that Young Avengers members Asguardian and Hulkling are gay), and I googled “Jesus Castillo” to learn more.
This is completely ridiculous: it’s one thing to punish invasively forcing porn on people (which is what the above-mentioned Miller was about, basically: sending several unrequired and very explicit brochures advertising pornographic books and movies to a restaurant, in other words spam), it is another matter entirely to attack a bookstore for selling adult books, particularly when they are clearly marked as such and kept in a special section. It’s like pursuing for exhibitionism someone who works in a strip-club.
The question of the merits of DBI had no place there: this was porn, it was clearly presented as such and it wasn’t available to kids. Some might find it unpalatable, that’s their problem: don’t like it, don’t buy it, it’s that simple. Boycotting the store is within their rights, harassing/persecuting is definitely NOT, and that goes double for cops and judges who have a duty to be impartial. And going after the clerc (who, it seems, wasn’t even aware that they had this item in stock) is pure nonsense.
Anybody with some knowledge of book history knows that comics stopped being for kids only more than 30 years ago (well, Americans have a reputation for not exactly being history whiz). Of course there are still comics for kids (Disney,…), but there are comics for teens and adults too (although these might be less developed than in Europe or in Japan). And erotic comics are just drawings, ink and paper, virtual porn in other words. If these cops have the time to bother harmless bookstores, why don’t they go after the kind of porn that really hurts people, kiddy porn, snuf,…? And frankly, as far as child exposure to “obscene” material goes porn just can’t compete with billboards, commercials and glossy magazines.