Jim of Unqualified Offerings responds to my previous entry thus:
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Apparently Jim entirely missed the point of my previous post, which was
- the reason the jury found no serious artistic or literary merit in Demon Beast Invasion is that there was none to be found; and
- folks like Jim who think this ruling strips first amendment rights from the entire comics medium have misunderstood the decision, and are needlessly spreading panic. Contrary to Jim’s opinion, the sky has not fallen.
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I’m not sure what Jim means by a “feminist” disapproval – as anyone who knows feminism knows, many feminists disagree about obscenity laws. (Try asking Nadine Strossen, the very feminist president of the ACLU, or Avadon Carol what they think).
More importantly, Jim’s putting words in my mouth. Of course, I don’t think Jesus Castillo deserves a felony on his record, a $4000 fine, or any jail time. I’d rather that Texas had never put Mr. Castillo on trial at all; as I said in my previous post, prosecuting this case was a waste of court time and taxpayer money.
The good news for Jesus Castillo is that Jim has again misunderstood the case. Mr. Castillo was sentenced to a year’s probation; assuming he doesn’t break probation, he won’t spend any time in jail. And his conviction is a misdemeanor, not a felony, so he’s spared reporting a felony conviction on future job applications. (I got this info from William Dwyer’s excellent post on the case, by the way – link via Jim).
Of course, $4000 is still way too high a fine (it certainly seems like a whopping sum to me – that’s a third of my annual income!), but compared to other miscarraiges of justice (innocent folks on death row, Patriot-Act-related travesties, etc) it doesn’t seem like a world-shattering injustice. And the good news (via Tom Tomorrow) is, the fine has been paid ” by customers of the shop and other local supporters.” (Good for them!)
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It should be pointed out that first amendment crusaders like the CBLDF are part of the problem in Mr. Castillo’s case, not part of the solution. Without the drumbeat of first amendment crusaders demanding a courtroom fight, Mr. Castillo might have chosen to cop a plea, and would probably have gotten off with a $500 fine. Since he was clearly guilty under the law, that would have been the most sensible course for him to take.
It’s only because he went to trial (and because his lawyers failed to get a record of the sentencing hearing, making it impossible for Mr. Castillo to appeal his sentence) that he wound up being sentenced as harsly as he was
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By the way, don’t any of the CBLDF’s donors and supporters care that the defense in this case seems to have been rather on the incompetant side? If I were a CBLDF donor, I’d be pissed off; those folks are definitely not getting their money’s worth.
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More generally, what censorship laws would I approve of?
Personally, I think that child porn and rape porn should be censored as heavily as possible (within the bounds of the Miller decision) and driven as far underground as possible. Allowing a market for child or rape porn (including “virtual” stuff) to flourish is wrong, because those markets encourage porn producers to harm real people.
Beyond that, I really don’t give a damn. But for me, “not giving a damn” goes two ways. I don’t agitate for Demon Beast Invasion and its ilk to be censored; but neither am I going to panic and start screaming “comics have lost all first amendment protection!” when a piece of worthless porn crap with zero artistic merit like Demon Beast Invasion gets censored.
UPDATE: I’ve removed a couple of paragraphs speculating about how the fine could be paid, replaced by the good news that customers and local supporters have paid the fine. Thanks to Lis for providing that info in the comments. Also, to prevent confusion, I changed my wording in the final paragraph; see my exchange with Eli in the comments for details.
SECOND UPDATE: See this response to me from Jim at Unqualified Offerings. The area of disagreement between me and Jim has gotten much narrower.
I also very much agreed with this post of Jim’s, in which he calls for the comics press to investigate this case, and in particular investigate whether or not the $60,000 CBLDF defense screwed up the case..
By “virtual”, I assume you mean drawings and computer graphics where no actual people were involved as models, right? How does that encourage porn producers to harm real people?
And is “rape porn” depictions of actual rape, or just of people pretending to engage in rape? If the latter, again, where is the harm?
I suppose you could argue that such things encourage the viewers to go out and harm people, but you argued that it’s the producers who are doing the harm, and how exactly does that work?
I’m surprised that you don’t see the slippery slope that exists in the realm of free speech. No one is asking you to defend the comic. I certainly don’t. But what I do defend is the right of any person to write a paper/book/leaflet/comic/poster/etc. about anything they choose and illustrate it in any way they choose. If we lose that protection, even if only for what the vast majority of us would consider worthless trash, I’m afraid that it erodes the presumption that the rest of us have the right to say and write what we want as well. I just don’t like the idea of setting a precedent for censorship, even if we’re only censoring junk.
Tom Tomorrow says that Castillo’s “fine was covered by customers of the shop and other local supporters”
I’m also wondering about rape porn. Are you only talking about visual representations, or do you include text? What about written fiction that involves no actual people? If prose and poetic descriptions are outlawed, there goes Romeo & Juliet, Lolita, and many autobiographies and romance novels. If you do allow such depictions, then what about illustrations? While it may not have been intended as arousing, Watchmen included at least one rape scene. And if you allow prose and comics, then why draw the line at computer-generated images?
I know it’s not a pretty topic to discuss, but as long as nobody is harmed in the making of the material, I don’t see why it should be criminalized. I know some people with some pretty strange kinks, and in my experience, having access to porn has been beneficial in giving them a safe outlet instead of having to act those things out.
Amp-
Do you think virtual depictions of murder encourages produces to harm people?
I think it was an important case to try to get through the courts, and a huge miscarriage of justice, because the reason he got convicted and the conviction upheld was the absurd declaration that comic books are kids’ material, and kids’ material always, no matter what their content or how they’re sold. That’s crazy talk.
Redaing through the post below, I see that I’m wrong, supposedly it was only decalred, and not objected to, that comics are always for kids. If that’s the case, then it’s a matter of incompetent lawyers and courts both. Still makes it a miscarriage of justice, though.
I’m concerned about the line that’s drawn between publications that do/do not have “the jury found no serious artistic or literary merit.” These things can be in the eyes of the beholder.
I, for instance, find James Joyce to be meritless ramblings of an egotist unfortunately gifted with publication. Many thousands of people would disagree.
Also I dislike the idea that people should “cop a plea” when they’re innocent (or seriously believe they’re innocent). While I admit that getting the situation over with quickly and returning to one’s “normal” life would be paramount for most of us, it’s this kind of precedent-setting plea-copping that allows the gradual erosion of civil liberties.
“Without the drumbeat of first amendment crusaders demanding a courtroom fight, Mr. Castillo might have chosen to cop a plea, and would probably have gotten off with a $500 fine. Since he was clearly guilty under the law, that would have been the most sensible course for him to take.”
Wow, what an insanely conclusory and circular piece of logic. He was “clearly guilty”? You know, even if the drawing sucks and the dialogue is inane, a reasonable person could conclude that a comic book has artistic merit. And the whole idea that a civil liberties organization is at fault for trying to defend the first amendment is nuts. I hope that when someone decides your posts are obscene you find better supporters than yourself.
How about next time, the Dallas district attorney go after an adult comic book depicting gay sex. They can make the same claims that you buy – it’s being sold in an area where kids might see it, and if they do, then it might lead them to the harmful lifestyle of homosexuality. I bet a jury would buy that, too. You want that?
Is kiddy porn and so forth more prevalent in Japan, where I understand hentai is considered pretty acceptable?
Anne, have you read Dubliners?
Mithras, those aren’t “the claims I buy.” I’m not sure whose post you’re reading and arguing with, but it’s not one of mine.
Anne, are you so convinced that James Joyce has no merit that not even expert testimony could convince you to give it reasonable doubt? Even if your answer is “yes,” do you really think a jury nowadays is likely to consist of 11 others just like you? And even if your answer is “yes,” there is no chance in 2003 that a James Joyce obscenity conviction wouldn’t be overturned by higher courts.
The thing is – and this is an answer to Amy, as well – where has this alleged slope slipped? We’ve had these obscenity laws for years, and at times they’ve been overly-enforced. We’ve gotten to the point where it’s no longer a matter of defending Lolita in court (something I can see was essential to do); it’s now protecting Demon Beast Avenger.
Someone please explain to me the mechanism by which the censoring of Demon Beast Avenger means that I won’t be able to walk into my local bookstore and buy James Joyce.
Child porn has been illegal for longer than I’ve been alive. That has led to occasional overzelous prosecuters overstepping their bounds (i.e., someone being arrested for a photo of their toddler taking a bath), but that’s always been true. What I want to know is, where is the slippery slope? Has this law (rather than new laws) led to Romeo and Juliet no longer being available in libraries and video stores?
The fact is, the slippery slope that so many first amendment purists refer to doesn’t seem to exist. We’ve had censorship for decades and decades, and it hasn’t inevitably led to the stripping away of all our liberties, it hasn’t chilled the arts, and it hasn’t turned our culture into an Orewellian 1984.
Far from being slippery, the slope has a fuzzy-but-existing stop line in it – the Miller decision – which isn’t perfect, but is seemingly pretty effective at keeping the censorship from getting out of hand.
So to change my mind on this, you need to either show me that the alleged slippery-slope actually exists, or you need to show me that Demon Beast Avenger (issue two) has such strong inherant value that it should be protected even if there is no slippery slope.
I’d like to add to Amp’s excellent points that a big gripe I have with the CBLDF is contained in the “Defense” part. I often wonder why there is so seldom an “offense” action taken on behalf of the comics out there that do indeed have “mature readers” content but are nonetheless actually good stories by talented people ? Why must it be that every time one of these news items about someone hounded by the cops for selling obscene material hits the press, it has to be over some piece of shit like *Boiled Angel* or *Demon Beast Avenger * or *Hawt Handcuffed Schoolgirls Fellate Satan* or whatever ?
I’d like to see some of the money endlessly collected for these cases re-chanelled into promoting adult work that’s actually good. I am bone-weary of again and again being expected to rally to the defense of “creators” who opportunistically exploit the public’s worst instincts just to make a quick buck, over and over again. What you end up with in this scenario is economic censorship: Opportunists knowingly push sleaze with the unwitting assistance of those who believe in the sanctity of the First Ammendment. A great many of those who end up assisting in the defense (think of some of the benefit comics that have been collected by CBLDF to raise money for cases like this one) have more talent and scruples in their left pinky than the fuckwits they defend have in their entire bodies. The talentless fatten themselves on the backs of the talented, all in the name of freedom. And the press once again breathlessly rushes to tell the general public of how there’s nothing of note in the entire comic book industry but the likes *Demon Beast Avenger.*
How frustrating, still, after all these years. What a crock of shit, still, after all these years. :(
I have a few (honest) questions:
Why must something have literary, artistic, or scientific merit in order to be legal?
Can something have a negative effect on society as a whole, and can it be illegal for that reason?
Do (fictional) depictions of a behavior influence or affect actual behavior?
What’s the difference, if any, between “prurient” photos and “prurient” drawings?
Are laws limited to sexual obscenity, and if so, why?
FTR, I’m not interested in defending “Demon Beast Whatever” or its media coverage. Not knowing anything about the comic book/graphic novel industry, I trust Ampersand’s judgement of it. I’m also not really interested in the “slippery-slope” argument.
But I’m genuinely curious as to why “sleaze” should be regulated in the first place. Maybe it should be and I’m just ignorant of the reasons. I don’t know.
i think you are misrepresenting the important facets of this case.
i agree that mr. castillo was probably hamstrung by the CBDLF lawyers’ feeble arguments. i think the jury’s decision says as much about the defense’s tactical errors as it does about the merits of the case.
but your point-by-point rebuttal of the defense arguments seems to belie a fairly quaint definition of what is and isn’t “art” — by which i mean “anything of artistic merit.”
you don’t like DBI because it is “badly-drawn”, and there is no compelling character development. the sexual themes are empty and base.
but you know what? the artist makes them for a reason. there are japanese people who seem to like it. for crying out loud, there are americans who will seek out imported copies because they, too, find something redeeming in it. is sex a big part of that? maybe. but the simple fact that people are buying this comic, however “awful,” “lousy,” and “empty-headed” you may find it, has to tell you something.
(as an aside, i should point out that sex in general — and specifically themes of seduction and even forcible sex, along with alien/demon sex with humans — is in fact quite common in japanese comics and pop culture. ask your comic expert friend, and i’m sure he can verify this for you. i don’t think you can dismiss the idea that DBI may reflect the source culture out of hand.)
the inherent weakness of obscenity laws is the same as with most “vice” laws: it attempts to legislate morality between consenting adults. and, like anti-drug and anti-prostitution statutes, the punishments tend to be far out of proportion to the crime committed. obscenity laws are by their very definition anti-choice. they are de facto censorship, and are terribly inconsisent, not only across jurisdictions, but from jury to jury in the same area. (and the application of them is capricious at best — how much would you like to wager that the undercover cop flipped through every comic in the “adults only” section before finding one that he felt was sufficiently “obscene” to justify the expense of setting up a bust?)
you seem to be perectly fine with the idea that people in mr. castillo’s area would have no access to DBI. (if that prospect does trouble you, you certainly make no mention of it.) you jump back and forth, defending the decision on philosophical grounds when it’s convenient, and on legal procedural grounds when that works best.
this melding of personal ethics and legal commentary is dangerous, in my opinion. you talk about DBI as if its “obscenity” were an inherent, immutable property, inextricable from the nature of the comic itself. that is where your logic breaks down for me. “obscenity” is a purely legal concept like “insanity”; it exists only in the minds of of juries and judges. if a Manhattan jury were to find DBI not to be obscene, would the comic suddenly lose an inherent property? of course not.
at what point does something stop being “obscene” — what percentage of the community has to find something acceptable?
you stake out some comfortably liberal ground by mentiong Crumb’s work, but there, too, you talk about it as though its artistic merit is something that be quantified and measured. you see the same black-and-white world (no pun intended) the Texas jury did, however far to the left your dividing line may be set.
if a reasonable person can create a work of “art” that speaks to just ONE other reasonable person, and nobody is harmed in the process, that is sufficient for me.
art does not have to be pretty. art does not have to be unoffensive. art does not have to have a “message.” art does not have to be uplifting.
and you do not have to look at it.
While Barry and I quibble from time to time on freedom of expression–I tend toward the absolutist end of the spectrum; my one true libertarian failing–he’s got the facts on the ground on his side here. It’s a travesty that the case was prosecuted at all, but in the scheme of things, this is small potatoes–and there’s blame to be shared by the well-meaning CBLDF. (This isn’t the first time they’ve bobbled in such a case, if memory serves.)
I’d just note David’s misusing “hentai,” which is anything considered perverted, really; Yankee otaku apply it to pornographic anime and manga, but it’s a broader term than that, and covers a lot more than the apparent prediliction for teenaged girls in sailor suits. Also, the age of consent in Japan is much lower than in the States–14, I think. Anyway, very little of what Japan produces–hentai or not–could by any stretch of the imagination be considered “kiddy porn,” which is as against the law there as here; what you’re probably trying to address is hebephilia, not pedophelia: the attraction to post-pubescent youth. –A distinction missed by most, granted, but an important one nonetheless.
Hestia: When it comes to publication (as opposed to broadcasting, which has even more nebulous “indecency” guidelines), this is the Federal standard for “obscenity”:
A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Miller v. California, 413 U.S. 15 (1973)
Note the emphasis on sex – American law is notoriously squeamish when it comes to sex (and for broadcasting, bodily functions and profanity) as opposed to violence. Look at the Extreme Associates persec, er, prosecutions, as opposed to various newspapers showing the battered bodies of Uday and Qusay Hussein on the front page after their killing by U.S. troops. Showing the pictures is nothing more than war porn, as opposed to being newsworthy.
Nevertheless, Oregon and Hawaii have stronger free-speech protections; Miller does not apply in Oregon, and comic shops are free to sell Rampaging Tentacle Hentai Attack without fear of prosecution to adults.
Regarding Amy S.’s concern: unfortunately, it’s important to protect Mike Diana, Demon Beast Invasion and the like – like other Constitutional violations, you generally can’t pick and choose who your defendant will be, and if they can successfully prosecute these people, they might just go after Margaret Cho next. After all, what’s more patently offensive than the gay to someone deep in Bible-Thump territory?
The First Amendment was put there for a very good reason: you can’t trust government to protect minority opinions; they will selectively prosecute the most unpopular or vanguarding movements (like the gay, again).
Yes, Aaron, I’ve read the Miller case, which includes a discussion of the obscenity laws. I know that they exist.
I’m wondering why they exist, how they got there, who came up with them, and if they’re a good idea.
CF, there are two issues here: the legal and the philosophical. I don’t consider that a bad thing, but I agree that the distinction sometimes grows muddy, and should be clarified.
The argument you’re making – which is, I suspect, similar to what the expert witnesses might say, if they were free to fully state their opinions – is that there can be no such thing as art “without serious literary or artistic merit.” Let’s call this the “Lot” approach to art; if just one person can be found who enjoys the work on any level at all, then the work has serious artistic merit.
In practice, this means that no distinction can be made between work with and without serious artistic merit. It all has merit, because at least one person can be found who’ll say that any work of art has merit.
Now, as a legal argument, that doesn’t get you anywhere. It is the law of this land that a distinction can be made between works with and without serious merit. So, until you change that law, your arugment about merit makes no sense applied to court cases in the US; all you’re really saying is, “I think current obscenity law should be overturned.” You’re not saying anything about whether or not current obscenity law has been correctly applied to DBI.
You wrote “I don’t think you can dismiss the idea that DBI may reflect the source culture out of hand.” I don’t dismiss that idea – on the contrary, it’s obvious to me that DBI does reflect the source culture. But so does every other work of art imaginable. From a legal perspective, therefore, the idea that “it reflects the source culture” cannot be enough to prove that a work has serious artistic merit, because if that were the case then there would be no such thing as a work without serious artistic merit. This, again, is an argument for overturning obscenity laws entirely – not an argument that proves that DBI isn’t obscene under the current law.
So, from a legal standpoint, I think you’re clearly mistaken. You’re presenting arguments which say, in essence, that there can be no such thing as a work without serious artistic merit, and therefore nothing can meet legal standards of obscenity. In fact, that’s not the current law; the current obscenity law says it is possible to make the distinction between works with and without serious artistic merit.
What about from a philosophical standpoint? Well, I do agree with you that no hard-and-fast distinctions exist. There is no bright line, on one side of which is work without serious merit, on the other side of which is work with serious merit.
On the other hand, just because no hard-and-fast distinctions exist doesn’t mean no distinctions exist at all. There is a spectrum. On one side of the spectrum are works that have unquestionable, serious artistic merit – Maus, Peanuts, etc.. In the middle of the spectrum there’s some gray area.
And on the far reaches of the other side… Well, in my opinion, there you find stuff with so little artistic merit that the only way to defend it is to claim that no such thing as artistic merit really exists. I’d say Demon Beast Invasion probably falls into this catagory. I’m not going to call for such works to be censored, but neither am I going to waste my time defending them – not when there’s so much more important work to be done.
Philosophically, I can’t sign on to a theory of art that seed no difference in merit between DBI and Maus. There is a difference; to say that there is no difference is to say that artistry doesn’t matter at all.
I do have to agree with everyone here that feels outraged over the results of this case. This is, indeed, outrageous.
Amp, I notice several times you bring up rape and child pornography laws in relation to the DBI comic, but to what end? In relation to these pornography laws, which are necessary and well-founded, we must ask ourselves to what end do these laws serve? Is it to protect people from being raped, and children from being taken advantage of, or is it to outlaw that thought, that sexual fetish, from existing within the minds of those who within it exists — however unfortunate and disgusting that might be? Is it to illegalize thought? Is it to illegalize the expression of this thought, even if no person is being harmed by it?
That is where the slippery slope comes in. It is the obscenity law itself that presents the slippery slope, when something can be illegalized simply because it is not “literary, artistic, political, or scientific” worth something. The law itself is bullshit, however legal the Castillo decision may be. If DBI was not actively promoting that the readership go out and rape children, or what have you, then the speech should be protected. Misogynistic, horribly drawn, merely sexually prurient, or not.
“Amp, I notice several times you bring up rape and child pornography laws in relation to the DBI comic, but to what end?”
You’re mistaken; I never brought those topics up in relation to the DBI comic. I only brought them up as an aside at the end of the post, and I didn’t intend for that passage to be applied to DBI. Sorry for the mix-up; I’ve now put that material into a separate post of its own.
As for the rest, why should I care if DBI is censored, exactly? How is society harmed?
Amp – my theory of “artistic merit” is it has merit if you can draw it better than me. (And I can’t even draw Simpsons characters freehand….)
The Miller decision is ripe for abuse; it’s certain that you or Scott McCloud would be able to make a good argument as an expert witness on behalf of a cartoonist with Spiegelman’s or Schulz’s talent whose work was prosecuted, but it’s also likely the state will have an expert to say the opposite – that is, if they wanted to bust someone so bad, which was the case in Castillo, and might be the case in another place where people don’t like the gays – why, they want to get MARRIED, dawg-gonnit!
Hestia, if your question is directed at me, I don’t care much whether or not “sleaze” is regulated. My quarrel is with groups like CBLDF that are so reactive, rather than proactive, when it comes to adult material in comics. There’s far too much good material out there for everyone to be tearing out their hair because “sleaze” is getting confiscated by cops. Not that the cops are wonderful people. Not that they couldn’t be doing infinitely more important things with their time and our money. I’m just fed up with the way this sort of thing invariably plays out in the public eye. :( It never seems to change. :(
I happen to have enjoyed reading Demon Beast Invasion. Who the fuck are YOU (or anyone else,) to tell ME that what I choose to read has “no serious artistic or literary merit,” and therefore is alright to censor.
And how would copping a plea help anything? As far as I can tell that would do two things: 1) it would encourage the fuckers, and 2) it would keep cases of censorship outta the news, which would further encourage the fuckers.
Give them an inch and they’ll take a mile. Make it easy and they’ll be emboldened.
Amp, your points are well-taken, but i’d like to expand on a few things. i think we agree on legal grounds here, and perhaps disagree on philosophy.
my general inclination probably is indeed toward what you’ve called the “Lot” approach to art. whether this gets me any closer to establishing a sound legal basis for challenging the obscenity law in the Castillo case really was not my aim.
i am not defending DBI by any means; i have never even seen it. and i am not challenging the jury’s decision in this particular case on any legal grounds. they apparently made the right legal decision, from what i have heard and read. but that doesn’t make it morally right, at least to me. the fact that something can only be defined as “obscene” in retrospect — that is, after a jury has declared it so — is unsettling to me, mainly because of the opportunities for abuse of the laws to harass or intimidate.
so i do, as you note, object to the ethical underpinnings of obscenity laws.
you write:
“The argument you’re making […] is that there can be no such thing as art ‘without serious literary or artistic merit.’ … [I]f just one person can be found who enjoys the work on any level at all, then the work has serious artistic merit. […] In practice, this means that no distinction can be made between work with and without serious artistic merit. It all has merit, because at least one person can be found who’ll say that any work of art has merit.”
that’s not quite what i mean. i do feel that there can be no art without “merit”; but to try and codify by law (with the associated penalties) what counts as “serious merit” is folly.
you also write:
“Philosophically, I can’t sign on to a theory of art that seed no difference in merit between DBI and Maus . There is a difference; to say that there is no difference is to say that artistry doesn’t matter at all.”
i think you are taking a bit of a leap of logic. i am saying that all art has the potential for some degree of merit. naturally, some works of art will have more merit than others. but that can only be decided on an individual basis, by each observer. i would say, as most folks probably would, that Maus has more artistic merit than DBI, but i happen to like Maus; that is my own bias. you don’t seem to allow for the person who finds little or no merit in Maus.
your reasoning above reminds me of the reasoning behind the 2 Live Crew obscenity fiasco of a decade (or so) ago. the law enforcement and judicial apparatus in Florida decided it could not sign on to any theory of art that saw no difference between 2 Live Crew’s graphic lyrics about sex and Frank Sinatra’s ballads. but the problem (as i see it) is in trying to frame the issue of “artistic merit” in legal terms, where there is, in fact, no spectrum. something either is or is not obscene. if the people in the 2 Live Crew concerts and the fans buying their albums enjoy them, who has the right to deny them of that? why should the people who like DBI have fewer choices than the people who dislike Maus? this may be legally sound, but it feels wrong.
every work of art needs to be evaluated on its own terms by individual viewers. this is the other side of the postmodern coin — if you want to allow that all art is a product of its culture, you need to allow that all art is interpreted differently by different people. “obscenity” and “serious artistic merit” are not things that anyone — a judge, a jury, a blogger, a blog reader — should declare by fiat. so long as nobody is being hurt, let people decide for themselves what is and is not acceptable, and how much artistic merit it contains.
– CF
[as to the whole “source culture” issue, i probably should have made those points in a separate post. i’ll try to reply to your comments, though…
you are correct that it is a flimsy legal position to argue that because something reflects its parent culture, it must contain artistic merit. and i agree with you in a postmodern sense that nothing created by people can ever be devoid of cultural imprints. but i think you’re putting too fine a point on it. there is a very real, very tangible difference between Japanese attitudes toward sexuality and American. and sexuality is at the very heart of this case. in Japanese “adult” comics and cartoons there is a much more accepting attitude toward what many Americans would probably call “deviant” sex. so in this particular case, i think there may be a case to be made for connecting the primary offensive ingredient in DBI’s obscenity — namely, sex — with the culture which created it. it might be laughably tenuous, but for you to say that it is not worth examining does not ring true for me. i guess we just disagree on that part. it is, though, legally unsound, as you said.]
Ampersand, I don’t understand this:
“I don’t agitate for Hustler and its ilk to be censored; but neither am I going to panic and start screaming ‘comics have lost all first amendment protection!’ when a piece of worthless porn crap with zero artistic merit like Demon Beast Invasion gets censored.”
Unless you’re granting artistic merit to Hustler, and to the gazillions of crappy porn videos that are legally sold everywhere, you’re saying you basically don’t care about grossly selective prosecution.
If you try to draw a line between Hustler and Demon Beast Invasion based on “artistic merit,” DBI is likely to come out ahead no matter how crappy the drawings and story are, because at least it’s an artist’s personal effort. So the line must be based on the “patently offensive” standard, which is the vaguest standard imaginable.
This gives ridiculous leeway to the local DA. Even in relatively liberal communities, is it so hard to imagine that a prosecutor on (say) an anti-gay crusade could selectively prosecute gay bookstores, based on the likelihood that Joe Juror – who considers himself an open-minded guy – still finds the mere thought of gay porn inherently ICKY? Does that not make you the least bit uneasy?
I don’t think most people realize just how loosely defined obscenity is, and how selectively it’s pursued. And I think that’s why the prosecutor’s “comics are for kids” argument is central to the case: its purpose was to distract the jury from the weakness of obscenity statutes in general, to keep them from wondering why this should be illegal while Hustler isn’t. Juror: “Well, this looks like crap but so does all my favorite porn. What the hell is ‘patently offensive’? Oh, I see… it’s when you put dirty pictures in the funny papers.” That’s a bad-faith strategy, not necessarily motivated by any specific desire to go after comics, but using comics as a wedge to keep the door of inappropriate prosecutorial leeway propped open for as long as possible.
Ampersand, given your stance on civil liberties issues in general, I’m puzzled that in this one area you’re so willing to trust to the good will of our friends in local law enforcement. “So what if they harass that creepy guy, and if the powers they used to do it could also be used against my pal? The creepy guy deserved it, and so far they’ve never gone after my pal.”
“Regarding Amy S.’s concern: unfortunately, it’s important to protect Mike Diana, Demon Beast Invasion and the like – like other Constitutional violations, you generally can’t pick and choose who your defendant will be, and if they can successfully prosecute these people, they might just go after Margaret Cho next. After all, what’s more patently offensive than the gay to someone deep in Bible-Thump territory?”
It may be important all right, but I wonder how many of the pea-brains that find artistic merit in crap like Diana and so on would really give two shits if the *Gay Guide To Marriage* or *Our Bodies Ourselves* or Margaret Cho’s CDs were censored. I’m guessing that very few would. The sort of people that love the former don’t strike me as the sort of people with much empathy for gays, feminists, or foul-mouthed but brilliant Asian Americans.
What did that one hilarious online journal by the woman who toiled in the adult video store say ? Something along the lines of, “Yeah, you have the right to sell it. But I wish you wouldn’t.”
I haven’t seen DBI. By the sound of it, I doubt I WANT to see DBI. I also don’t buy Hustler. But I loved Libido (RIP . . .). anyway, a lot of these side arguments are interesting, but the central point, it seems to me, is that an adult went into the adult section of a bookstore and bought an adult comic book that many readers of this blog (and probably I) would find distasteful, unartistic, etc.–but he bought this material, not for his own entertainment or enjoyment, but solely so he could then arrest another adult for selling it to him. There’s something wrong about this. If you don’t like something, don’t buy it. And that’s why I wish they had done a better job of defending this guy.
Also, I thought Hestia’s questions were great (and remain largely unanswered).
Eli, keep in mind that I basically agree with you and Hestia; I don’t think obscenity laws have a logical basis, and I’d rather make them much narrower than they currently are. I don’t favor arresting comic book store clerks for selling DBI.
Also, I didn’t mean to make a distinction between Hustler and DBI (which I consider to be of the same general “ilk”). In retrospect, I should have worded that paragraph like this:
Is that better?
Eli put it perfectly: “So what if they harass that creepy guy, and if the powers they used to do it could also be used against my pal? The creepy guy deserved it, and so far they’ve never gone after my pal.”
Amp, i am glad you concur that obscenity laws lack a logical basis and are far too broad. but i still hear you saying as long as they’re applied to things you personally find no merit in, that’s no big deal.
you seem intent on polarizing this issue — either we’re in a needless “panic” over the first amendment, or DBI is “worthless porn crap.” there is no middle ground in your rhetoric; and that’s where honest discussion takes place.
hmm… now that i read my last line there, it sounds a bit rabid.
let me try again:
you seem inclined to talk about this issue in polar terms — either we’re in a needless “panic” over the first amendment, or there’s nothing to worry about here. either DBI is “worthless porn crap,” or it has “serious artistic merit.” there is no middle ground in that rhetoric; and it’s hard to focus on the central issues when we keep getting caught up trying to attack or justify these extreme positions.
ok, i feel better now.
The more I reflect on this, the thing that really sticks in my mind is that when the prosecution argued the absurd idea that comic books are kids’ material, and kids’ material always, no matter what their content or how they’re sold, that argument should’ve been summarily shot down by the judge, even without an objection by the defense. Would other arguments of that type be tolerated by judges? I mean, it’s just not true. Would all other obvious falsehoods be allowed to be used, as long as the opposition is asleep at the switch? If the defense didn’t object when the prosecution asks for a harsher penalty because a crime was committed on a Sunday, or conversely if the defense asked for leniency because the crime wasn’t committed on a Sunday? Wouldn’t the judge step in and say that really doesn’t make any sense?
Ampersand, you don’t think the laws have a logical basis and you don’t favor enforcing them in cases like these… yet you think Castillo should’ve pled guilty rather than challenging the law, and that the CBLDF is “part of the problem” for defending him at all (let alone badly). Huh?
Eli, the CBLDF defense didn’t attempt to challenge the constitutionality of obscenity laws. If they did, then it would have been (to put it mildly) a long shot, but I would have seen the point.
Similary, if they had gone forward arguing that the DA’s case (or the prosecution at all) was a case of unfairly picking on comic books shops, that would have been a long shot, and one that I would have approved of. Instead, they entirely dropped this line of argument, by not objecting to it during the trial (thus losing the right to argue about it to appeals courts).
Instead, their main defense was to argue that Demon Beast Invasion is not obscene under current obscenity law. That’s not an argument that’s winnable, or worth making. If you accept the existance of obscenity (sp?) law at all, then DBI is obscene (if DBI doesn’t count as obscene, then it’s hard to imagine what possibly could!).
I approve of defending the first amendment – but part of that is picking and choosing which cases to fight (because they have a chance of setting case law that will be beneficial to your cause), and which ones to settle because there’s nothing you’re going to gain by fighting. The $60,000 the CBLDF spent on this case was not well spent, in my view; I would rather they had negotiated a plea and paid Mr. Castillo’s fine (something they probably could have done for under $2000), and saved their big guns and big spending for when a better case comes along.
I think Mr. Castillo was screwed over in this case by the deadly combination of a jury of 12 stupid people and an incompitent defence by his lawyer. This is a trial that never should have been. The fact that this trial ever made it before a jury in the first place would make me glad, as an artist, that I am not an American…
…were it not for the fact that obscenity laws up here in Canada are even more puritan and restrictive, especially concerning comic books.
Our world is ruled by small-minded prudes right now and there doesn’t seem to be a lot to be done about it. Our western religions have caused so many of us to tremble with fear and guilt everytime our genitals start to tingle.
Personally, my opinion is anything “virtual” should not be illegal. No matter how sick and objectional I may find a drawing, computer rendering, text story, or animation, if no real people are harmed or exploited producing the work then the work itself should be legal. Make all the laws about selling certain types of works to certain age groups. I have no problem with that, but that wasn’t the case here.
If the local law said “no porn sold within 200 metres of a school” and he was within the “no porn zone” then he should be busted. So too should all the corner stores in the area selling their nudie-mags. As far as I know only this comicbook store was targeted and no such anti-porn law existed in that community.
I have never believed that our entertainment makes us the people we are. I’ve seen movies with all manner of disgusting and barbaric acts of human evil taking place in them yet I have never even had the tiniest urge to commit such acts myself. In terms of violence and sexual content the Japanese are for more explicit, even in children’s programming, than we in North America are. If the “media makes the man” advocates were correct then Japan should have reduced itself to a flaming pit of oblivion long ago.
Besides, when it comes to porn the virtual stuff, writing, drawings, computer renderings is always much less harmful than the live-action porn simply because there is no one being exploited. If you read a comic book with some teenage girl being gang-banged in the locker room by the football team you’re never left wondering if the paint and ink on the paper is only doing this scene out of a desperate need to satisfy its drug addicted cravings or is forced into a life of comicbook porn by a combination of a poor education and limited economic opportunities. Even if the football team is a team of great and terrible tentacled beasties you’re still not worried if the the drawing of the cheerleader is being unfairly exploited. You can’t say the same thing for most live-action photo nudie magazines that are sold legally on the shelves on your local corner store.
Even if you are worried that circumstances have forced that poor drawing of a teenage cheerleader into a life of comicbook porn, why is it we always assume it’s the poor defenceless female who is the victim in such cases? How do we know that it is not the tentacled beasties who are the true victims here? Maybe they had hopes and dreams of making it to the major leagues of drawn tentacled beasties professional football. Perhaps they just wern’t quite good enough, or an injury cut short their sports careers. Perhaps they were let down by an educational system that was only interested in their athletic abilities and were rubber-stamp promoted from grade to grade, class to class. Now with no professional sports career and no education to fall back upon they turn in despiration to the comicbook porn industry only to have their deep and secret shame further inflamed by angry fingers waving and condemning voices screaming “How dare you violate so cruely that drawing of a teenage cheerleader.”
For all you know that drawing of a teenaged cheerleader might really be into rough sex with sports teams of tentacled beasties.
Maybe what would be best would be to stop judging the lives of these drawings and concentrating on living one’s own life and raising one’s own children in such a way that they need never fear having to take up work in a comicbook having sex with drawings of football teams of tentacled beasties or adolescent cheerleaders.
to Amy S. re the audience for Mike Diana, Jim Goad, et al…..
Yep, I realize the audience for those works is unlikely to defend Margaret Cho if someone thought her work was obscene, or more likely, “indecent” for radio airplay.
Still, I realize the people enforcing the obscenity laws are our tolerant, First-Amendment-loving Portland Police, who have bright ideas like pepper-spraying babies at protests.
Ghastly? The Ghastly’s Ghastly Comic Ghastly? :D
How did you find this stuff? :P
You should SO make a comic out of your above essay. ;P
Unfortunately, Aaron, there’s really know way to tell how many Right-wingers are using porn themselves despite their public faces of purity. I’ll wager it’s a lot, though. Liberals don’t have enough pocket money to keep the industry fed all by themselves. As for the link between porn and thinking it’s great to pepper-spray a baby, a commentator whose name escapes me now said that she lived through the “Make Love Not War” era. Only to decide that having sex with everything in sight ended up mimicking, not contradicting, the mindless, anonymous nature of war. The same could very well apply to that cop on the corner who may, for all you know, want the protesters to go home sooner so he can get back home to his trusty nightstand full of *Penthouses*. :p
CF wrote: you seem inclined to talk about this issue in polar terms — either we’re in a needless “panic” over the first amendment, or there’s nothing to worry about here. either DBI is “worthless porn crap,” or it has “serious artistic merit.” there is no middle ground in that rhetoric; and it’s hard to focus on the central issues when we keep getting caught up trying to attack or justify these extreme positions.
The problem is, I see the position implied by refusing to admit that DBI is “worthless porn crap” as, itself, an extreme position – one that denies that it’s possible to make distinctions between good art and bad art, that quality and artistry matters, and that there’s a difference between Naughty Bits and DBI.
Here’s a question for everyone who objects to DBI being called crap: is there any art that you’re willing to admit is crap of minimal worth? Or in your view, is all art, regardless of its content or quality, worthwhile non-crap?
And if the answer to that latter question is “yes,” then how is that not an extreme position?
As for the “panic,” I’m sorry, but I was responding to the consensus in much of the blogosphere that a precident had been set saying that comics have less first amendment rights than other mediums. That’s simply not true. No such precident has been set, period.
Now, there are middle-ground positions I’d support – such as, “it’s true that no such precident has been set. But it’s also true that comics, due to the perception of them as a children’s media, are more in danger of prosecution than (say) videos or magazines that are objectively just as bad. That’s unfair.” I could certainly agree with that. But that’s not the same as the position I was rebutting.
Ampersand, I know you were talking to CF, but my own 2 cents: the question of whether it’s to the point to quantify the “artistic merit” of DBI, or anything else, really does depend on what for.
I really doubt that CF or anyone else here believes there is no difference between good art and bad art. But I for one believe that it’s foolish and dangerous to try to quantify that difference in a court of law, and make it the basis for imprisoning or fining people. If you ask me which of two people I think is more attractive, I may have a strong opinion about it… but if you’re their boss and you’re planning to fire whichever one is uglier, I’ll refuse to help you apply that standard.
So I agree with CF that there’s no point in constantly stressing, as you do, that DBI is not serious art, and challenging people to say otherwise… unless you now agree with the Miller standard, and think it’s OK to ban things for being crappy and prurient.
Plus, “Do you mean it’s the same as Naughty Bits?” is a ridiculous straw-man challenge, easily seen as such if you read the thread and see the near-total lack of praise for the book.
Actually, reading your comment again, it looks even sillier to me now. You think “refusing to admit that DBI is worthless porn crap” is an extreme position? Well, sure it is, if you first posit that (a) you are absolutely, unquestionably right that it’s worthless, and (b) any non-zero amount of worth must be extremely, staggeringly different from worthless. Nice circular reasoning there – did you do that freehand or with a compass?
Note that CF didn’t actually take sides on the merit of the book, but just questioned your standards – so you seem to be dumbstruck by the mere possibility of a difference of opinion. Just how much of the book did you read, again? (I’m not making any claims for it; I haven’t read any of it at all. Please resist the temptation to therefore dismiss everything I’ve just said; that’s not really as great a logical maneuver as you might think … especially when you’ve apparently only seen a few bits.)
It’s really irritating to see differences in standards inflated into some grand philosophical struggle between Art and Nihilism.
ps. Nit-pick: “precedent” not “precident.” Also, you’ve referred to the comic by at least three different titles in your last few posts. Take a deep breath.
Seems that I came across as an asshole in the p.s. to my last post. Really sorry if I gave any offense – it was a flippant aside, not meant as any kind of backup to my argument.
Amp –
wow! this thread has legs! bear with me and my slightly verbose post….
in response to my musings on extreme positions, you wrote:
The problem is, I see the position implied by refusing to admit that DBI is “worthless porn crap” as, itself, an extreme position – one that denies that it’s possible to make distinctions between good art and bad art, that quality and artistry matters, and that there’s a difference between Naughty Bits and DBI.
Amp, i think we have a fundamental difference in opinion over the nature of art. i wholeheartedly agree with you that there are distinctions to be made among “good” art and “bad” art in this world. [by the way, i have a degree in art history, just for what it’s worth. (insert joke here.)] of course “quality” and “artistry” matter, but you’re just defining one subjective term with more subjective terms. you seem to believe that there is some magic set of criteria that defines all “good” art, and a corresponding list of criteria that make “bad” art irredeemable.
i absolutely would prefer Naughty Bits to DBI. most of us would. i’m not trying to deny that, and i’m not denying that in general, most of us probably agree on what is in good taste, and what isn’t.
but you keep talking about DBI as if its being “worthless” was a universally-accepted Truth. if i don’t see it as “worthless,” it’s as if i were denying the existence of gravity. you are connecting my refusal to agree with you about one specific comic with an extreme position on art that i never professed (namely, that no distinctions can be made among art).
it is perfectly normal to debate the nature of good art versus bad art. that is why styles change; it is why what is popular in one generation often has to be rejected by the next in order for artistic progress to be made. when the Impressionists and Fauvists tried to exhibit their early works in the official art academies, they were shunned and ridiculed because their paintings were not photorealistic. in the traditional mindset of the day, it was inconceivable that “art” could encompass the increasingly abstract view that was being taken by artists who we today consider unassailable masters.
i’m not drawing so broadly as to compare Demon Beast Invasion to Manet; i’m merely pointing out that there is no universal standard for “good” art and “bad” art; we must each decide that ourselves. i can’t apologize if that position sounds too vague to you, but i don’t think it’s extreme.
you asked:
Here’s a question for everyone who objects to DBI being called crap: is there any art that you’re willing to admit is crap of minimal worth?
absolutely. (i hesitate to call anything “crap,” though.) i would consider the movie Faces of Death to be “of minimal worth.” i would consider the art of Jeff Koons to be “of minimal worth” — yes, even his non-pornographic works. i’m sure i could think of more. but ALL of those judgments are just my opinions, and if i met someone who disagreed with me, i wouldn’t stand there thinking “when is he going to admit he’s wrong about Jeff Koons?” it seems absurd to me to use terms like “admit” and “deny” when we’re talking about personal appeal.
you wrote:
As for the “panic,” I’m sorry, but I was responding to the consensus in much of the blogosphere that a precident had been set saying that comics have less first amendment rights than other mediums. That’s simply not true. No such precident has been set, period.
fair enough. some of the initial reaction to that aspect was pretty frothy. clearly, no such precedent has been set in law. that said, though, is it not fair to assume that the next time a comics-obscenity trial comes along, the prosecutor will have the (so far successful) “comics are for kids” argument on his/her mind?
and finally, you wrote:
Now, there are middle-ground positions I’d support – such as, “it’s true that no such precident has been set. But it’s also true that comics, due to the perception of them as a children’s media, are more in danger of prosecution than (say) videos or magazines that are objectively just as bad. That’s unfair.” I could certainly agree with that. But that’s not the same as the position I was rebutting.
i happily join you in support of the middle-ground position above.
:-)
now, if i may, i’d like to go back to your characterization of DBI as “worthless porn” (crap) and some of the ideas i’ve had over the last day or so.
i went and took a look at some DBI art online over the weekend. having seen it, i’d say DBI is a fairly standard example of Hentai. we don’t need to start a side-discussion here on the definition of hentai, but i think it’s fair to say that hentai is, for all intents and purposes, pornographic.
so as far as the “porn” part goes, i have to agree with you. what’s left is the “worthless” part. i guess i’m wondering if you consider ALL pornography to be “worthless.” (we can agree that child porn and rape porn are unacceptable.) the things in DBI that you do not like are part and parcel of the genre. so for you to label DBI “worthless porn crap” seems to imply that most or all other hentai is worthless as well.
do you see any distinctions in “merit” or “value” among different types of pornography? is Playboy ok, but Hustler isn’t? are “soft-core” romance videos acceptable, but hard-core videos are not? if you feel that way, there’s nothing wrong with that — a lot of Americans probably do. if you don’t see any distinctions, that’s fine too. but you have to acknowledge that there is a segment of the population which would quite eagerly eliminate ALL of the things i listed above (and a lot more) on the grounds that it’s all obscene. they depend on rational people like you and me not being willing to, well, stand up for pornography because it is indeed a little embarrassing. (i admit i never thought i’d end up doing so much porn-defending. heh.)
the people who believe in censoring pornographic materials do so because they object to the “ideas” it leads to (people thinking about sex purely for sex’s sake, which is “immoral”) and/or the “acts” it leads to (that is to say, masturbation and/or fornication). this begs the question of whether there is anything wrong with appealing to “prurient interests,” as they say. i would say there is not (though i’d use the term “sexual interests”). i believe pornography (with the exceptions i mentioned above) should be freely available to consenting adults, provided it is kept away from children and labeled as “adults only.” (DBI, of course, satisfied those last two conditions.)
i’d say the value in pornographic material is that it provides sexual release or gratification to the millions of people who buy it. does this count as “artistic” merit? maybe not. but that is a philosophical question, about which reasonable people can disagree. i get the feeling you are reluctant to acknowledge any potential value in pornography (even if you don’t personally enjoy it) and that, ergo, DBI is “worthless.”
i know you don’t condone prosecuting mr. Castillo, and i believe your original post was only trying to defend the DBI obscenity decision on legal grounds. but once you cross the rhetorical line of labeling things “worthless” or “worthy” with an air of authority beyond personal belief, there is little room for discussion about the things you DO feel are worth defending. someone else can simply declare them “worthless” and end the conversation. (these are the kinds of polar and extreme positions to which i alluded in my previous post.)
art in and of itself can’t hurt us. it is moral certainty that is dangerous, because once you are morally certain of your beliefs, there is nothing that can convince you otherwise. when you make statements like “XYZ is a worthless piece of crap” or “ABC has unquestionable merit”, you are giving license to an aesthetic values system that sees absolutes. a system of these kinds of absolutes is not only contrary to most modern theories of art and culture, it is the fundamental basis for pro-censorship beliefs.
there are religious fundamentalists and other conservatives in this country who, for example, find erotic gay photography to be obscene, immoral, and completely devoid of artistic merit. in their minds, such art is “worthless porn crap,” and there is no room for argument. but they have no more right to condemn Robert Mapplethorpe than you or i do to condemn DBI. just because you and i may feel we are sophisticated or hip enough to recognize the artistic value in Mapplethorpe photos doesn’t give us license to declare something else further down the line “worthless.”
if you adopt the same logic as proponents of censorship, you are, in effect, a proponent yourself. it does not matter where you see the “bright line” dividing “good” art from “worthless” art. people use the same justification to censor “obscene” art that you use in not defending people’s access to DBI — it’s all “worthless.”
i concede that DBI is pretty low on my personal “serious artistic merit” scale. (for the record, all of the hentai i’ve ever seen strikes me as fairly dumb, and somewhat juvenile.) yes, it is pornographic. and it’s not what you or i would call “high art.” that’s fine. but the fact that many people buy it and enjoy it (for whatever reason) precludes you from calling it “worthless.” i am willing to accept that by “worthless,” you may simply mean “without serious artistic merit, in my opinion.” but if that is what you mean, say that instead. and if what you mean is “pornography has no values worth defending, in my opinion”, then say that instead. choice of words is very important here, i think; i’m not trying to split hairs.
Eli eloquently touched upon what is really the core of my arguments: you and i may agree that DBI is not worth our money or our interest; but it goes too far to imply that there could never be a valid reason why anyone would find it worthwhile. (especially when fines and/or jail time can be the result of that thinking, as in a court of law.) this all may seem like a purely semantic exercise to some, but there are far too many powerful people in this country for whom “worthless” equates with “worth censoring.”
To Eli and to CF:
Okay, it’s tempting to fight for what I’ve written to the last syllable. But I won’t; as you both correctly noticed, I overstated my case.
So I’ll back down.
A bit.
I don’t think arguing Demon Beast Invasion has “serious artistic value” (to use the Miller Court’s phrase) is necessarily an extreme position (although it would be an unusual position). However, I do believe that someone saying that all works of art, without any exception, have serious artistic value, has taken an extreme position.
So if someone wants to hold the former position but doesn’t hold the latter position, then no, I don’t consider that an extremist position.
My impression, however, is that all the folks (such as the experts at trial) who are arguing that DBI has serious artistic value, would make this argument about virtually any work of art that was threatened by censorship. In effect, they don’t believe that there can be such a thing as a work of art without “serious artistic value,” and I do think that is an extreme position.
CF is correct to say that by “worthless,” I mean that DBI is “without serious artistic merit, in my opinion.” And I should have worded it that way.
* * *
CF, thanks for that post. I won’t respond to every bit of it, but I read and appreciated the whole darn thing.
CF wrote: if you adopt the same logic as proponents of censorship, you are, in effect, a proponent yourself.
Well, Duh. :-p Keep in mind that I am a proponent of censorship – although not of DBI in particular. But as my followup post made clear, I do favor censoring some porn. Furthermore, I do favor making exceptions for reasons of serious artistic value.
Given my views, it seems to me that I have to support Miller, or something akin to Miller. I think that it’s important that child porn and rape porn be censored. At the same time, I don’t think movies like Lolita and The Accused should be censored.
The question is, can the judicial system be trusted to make a sufficient distinction between rape porn and The Accused, and between child porn and Romeo and Juliet? I think yes. I don’t claim that the system is perfect – but overall, we’ve reached a point where we’ve been able to attack child porn very harshly without actually banning Lolita and Romeo and Juliet.
There’s no question to my mind that the existence of obscenity laws carries a cost. If that cost is the censorship of DBI, however, then to me that is not a compelling reason to oppose obscenity laws. In my opinion – an opinion that is, I suspect but can’t proved, shared by many – the loss to our culture if people can’t easily locate and purchase DBI is negligible.
Now, if we lost Robert Mapplethorpe’s work – work of which I’m not especially fond, but which I recognize has serious artistic value – that would strike me as a compelling reason to oppose obscenity laws.
Is there an example of someone who has been jailed or fined for presenting Mapplethorpe’s work, and whose conviction was not overturned on appeal? Has the existence of obscenity laws led to Mapplethorpe’s work being unavailable to interested viewers?
Finally, I do agree that all porn has some worth, insofar as it helps people enjoy masturbating. However, in some cases – such as child porn and rape porn – I believe this worth is far outweighed by the potential costs, both in terms of the pain to individual victims and in terms of the coarsening of our culture.
If fact, even in the case of the porn I wouldn’t choose to censor, I’m not sure that the costs don’t outweigh the benefits. I think porn – like a lot of pop culture – contributes to an enourmous harm by supporting what some feminists call “rape culture,” and I’d call “the myth of masculinity.”
Again, I’m not saying “let’s censor all of it!” (either porn or pop culture in general) – just that I’m not sure the benefits outweigh the harms. And I say that as someone who has probably watched almost every single episode of Friends.
Ampersand: I don’t think arguing Demon Beast Invasion has “serious artistic value” (to use the Miller Court’s phrase) is necessarily an extreme position (although it would be an unusual position). However, I do believe that someone saying that all works of art, without any exception, have serious artistic value, has taken an extreme position. (emphasis mine)
The thing is, I think there’s a big problem with “using the Miller court’s phrase” as you’re doing. The Miller standard rests on the idea that there can be some agreed-upon bar, with all things above it being “serious,” deserving the utmost respect and protection, and all things below it being “not serious,” deserving none. And in everyday usage, “serious” means “of a very high degree”… but in the Burger’s decision it’s really unclear what it means.
The previous precedent had used the language “utterly without redeeming social value,” for which the court now substituted “taken as a whole, lacks serious literary, artistic, political, or scientific value.” Burger explained that the phrase “utterly without” had placed too great on the prosecution, who would have to prove a negative (no redeeming value at all)… whereas with “lacks serious” the burden of proof would be slightly less. But if that’s what the court had in mind, then “serious” can’t be the key word, because proving no “serious value” at all is just as impossible as proving no “redeeming value” at all. Burger didn’t explain why he added that loaded word to the standard; his argument focuses on the difference between “utterly without” and “lacking” – which seems even weirder to me, since “lacking” can mean either not having any or not having enough of. The whole phrase is like a verbal Rohrschach blot.
Anyway… if you think that anyone who argues that Demon Etc. should be protected under Miller is therefore claiming that it has “serious artistic value” … well, that’s a literally accurate summary if one is speaking in Warren Burgerese, as one is required to do when arguing such cases. In that context, “serious value” has no specific meaning other than “any degree of value that I think this jury should consider worth protecting.” But it’s unfair to conflate that with the everyday usage of “serious” in order to imply, as you appear to be doing, that defenders of the book are saying it’s great art.
Er, for the peculiar phrase “the Burger’s decision”, please read “the court’s decision” or “Burger’s decision” as you please. – The Eli
On the subject of “First Amendment absolutism”…
Ampersand, correct me if I’m wrong but it seems to me that you would determine the scope of First Amendment protections very differently for two broad categories of material: (A) visual representations and fiction, which I’ll call “art”; (B) allegedly factual reports, which I’ll call “journalism”.
In case (A), you’re trying to evaluate “benefits vs. harms” for specific categories of “art.” The harms of child pornography outweigh its benefits, so you would ban that. If the harms of porn in general – or depictions of violence – outweighed the benefits, you would consider banning those. But those decisions would have no bearing on whether we should be able to ban works of science fiction, mime, or needlepoint… unless, presumably, we discovered some serious harm from those.
But see what happens if I apply that kind of logic in case (B), “journalism.” The harms of celebrity gossip columns frequently outweigh their benefits, so those clearly deserve strict regulation. The Sunday Style section serves no earthly purpose at all – we’ll allow it, but we reserve the right to squash all “youth trend” stories. The New York Post contributes to a distorted and dangerous view of the world – let’s ban just that one paper, or possibly just Steve Dunleavy. With me so far? I hope not. Most people I know are what you’d call First Amendment absolutists when it comes to that kind of thing – which is to say they weigh the harms and benefits of a free press as a whole, and recognize that there’s no such thing as a free press minus gossip columns and the Post. (Libel law is a special case because it involves harm to a specific complainant, rather than to the common good as in your porn examples.)
So I see a double standard in which the Post is protected as a matter of principle because “journalism” as a whole must remain inviolate; but The Devil in Miss Jones is protected only if it passes a cost-benefit test, without regard to any overall chilling effect on “art” if it were banned. I don’t know if this means you see “art” as inherently less important than “journalism,” or if you think there’s some Constitutional basis for this distinction, or what. And by Constitutional basis, I mean anything in the document itself – not the various dance steps courts have taken.
(By the way, I know there’s a huge logical hole in the above: I have no basis for assuming that you’re broadly in favor of freedom of the press. I just figured you would be.)
Eli wrote: …in order to imply, as you appear to be doing, that defenders of the book are saying it’s great art.
Nope nope nope. You’re just sticking words into my mouth; I never said that, and I never implied that. Unless you can quote me directly saying this, I think you’ve made a mistake.
Eli wrote: So I see a double standard in which the Post is protected as a matter of principle because “journalism” as a whole must remain inviolate; but The Devil in Miss Jones is protected only if it passes a cost-benefit test, without regard to any overall chilling effect on “art” if it were banned.
You’re partly correct, and partly incorrect.
I certainly do support double (or maybe triple, or quadrouple [sp?] ) standards where the first amendment is concerned; indeed, that’s the law of the land. Political speech and journalism is understood to have the highest possible level of first amendment protection; in this realm, only that which is directly harmful and malicious (libel, for instance, or falsely yelling “fire” in a crowded theatre) is forbidden.
On the opposite side, commerical speech – advertising in order to sell products – has traditionally recieved lower levels of protection.
So, for instance, if I open a new sofa store offering sofas for as little as $2000, but a newspaper report on the store opening mistakenly says “Barry’s store is selling sofas for $100,” that’s protected speech. Yet if I print an ad falsely saying “My store is selling sofas for $100,” I can be prosecuted for that, and the first amendment doesn’t protect me.
My point is, double-standards are a perfectly normal part of first amendment law.
As for The Devil in Miss Jones – does it contain realistic child porn or rape porn? If not, then I think it should be “protected” – that is, I think it should be legal to distribute and sell it. That doesn’t mean that I like it; and it doesn’t mean that I don’t think it does more harm than good on balance. It just means that the only material I’m calling for the censorship of is child porn and rape porn.
Assuming that TDIMJ does contain realistic child/rape porn, then yes, I think it should be subjected to a sort of cost/benefit analysis. A judge or jury should, to the best of their abilities, determine if TDIMJ has any serious artistic value; if they decide that it does, then the costs of banning it should be assumed to be too high (because of, among other things, the chilling effect on art) and it shouldn’t be banned. On the other hand, if they find that TDIMJ has no serious artistic value, then I think it should be banned.
But it’s not true that this banning action is taken without regard to possible chilling effects – rather, such chilling effects are part of why TDIMJ would deserve protection if it had serious artistic value.
Amp – re: “great art” – certainly you didn’t use those words; sorry for my ventriloquism. But when you said it would be “unusual” to make a claim of “serious artistic value” for DBI, you seemed to be hung up on the word “serious” (or else wouldn’t you have just restated that it had no value at all). Well, that makes sense if you’re going by the everyday meaning of the word, which is vague but still implies “a good deal above average.” But my point was that it’s not at all clear what serious means in the legal language of Miller, and that given the nebulousness of the standard, one can certainly argue that a book has enough value to be legal without arguing that it’s any great shakes… and I don’t see what’s so “unusual” about that.
Re: multiple standards for First Amendment protection, of course you’re right about the status of commercial speech, but it seems to me that it is much easier to specify and quantify the damage caused by (say) false advertising – seems a lot different than arguing that certain kinds of imagery just have a generally negative effect on society.
Also, I don’t understand why you’re bringing up the harm/good equation (which I can’t imagine how you would quantify) at all for porn movies outside of your two taboo categories, if you say you’d never favor banning them. Was it just for the record, to register your distaste? I don’t get the idea that an overall cost-benefit analysis can be done on every movie but should have no legal weight unless one of the two magic ingredients is present. (And I presume you’re talking about a hypothetical world in which the law contains specific measures for “rape porn,” right? How else could you possibly ensure that courts will only apply censorship powers in the two classes *you* want them to?)
My point about “chilling effect” is that in the case of journalism, the banning of *any* newspaper would be considered beyond the pale – there would be no cost-benefit calculation that could conceivably make such an action “worth it.” As you say, there is precedent for giving less privilege to other types of speech – but there have been plenty of unjust precedents before, so I asked you whether you think there is any literally Constitutional basis for doing so. Call me an absolutist but “Congress shall make NO LAW … abridging the freedom of speech, or of the press” seems like a pretty absolute protection of at least spoken and printed expression.
So do you also oppose libel laws?
I mean, either you’re an absolutist or you’re not. If you want to use the “there are no exceptions written in the text of the first amendment” argument, then it seems to me you have to either be opposed to ALL exceptions (libel laws, distribution of child pornography, falsely yelling “fire” in a crowded theatre, etc), or you have to admit that in actual practice it’s not the case that the first amendment is interpreted in a strictly literal fashion.
Do I think there’s a “literal constitutional basis” that justifies different levels of first amendment protection for different kinds of speech? No, I don’t – but that doesn’t matter, because I’m not a literalist, and furthermore I think strict literalism is a mistaken approach to constitutional interpretation.
Are you a strict literalist – or are you only a literalist when it comes to arguing against particular laws you disagree with?
When I said it would be “unusual” for someone to claim serious artistic merit for DBI, I was just making a little tounge-in-cheek joke that fell flat. All I meant was that in all the reading I’ve done about the DBI case, I haven’t actually seen anyone defend DBI on its own merits, hence doing so would be unusual.
Amp, you’re correct that I’m arguing two different points and mixing them badly.
1. Yes, in fact I do have qualms about libel/slander laws, for the reasons you suggest. Not that they don’t serve a purpose, but they do offend my desire for consistency and my respect for the theoretical ideal of Constitutional government. I’m an absolute literalist in the sense that it seems odd to me to set forth such specifically worded absolute commandments as the basis for the law of the land, if you then have to carve out a bunch of exceptions which are not stated in that document in order to accommodate pre-existing common-law traditions or someone’s idea of common sense.
I really try not to apply logic selectively to produce the results I want… in fact it often produces results I don’t want. For instance, despite being a pacifist and hating the prevalence of weapons, I have a lot of trouble seeing how gun-control laws can be squared with the Second Amendment. I’m pretty sure I’ve heard the major arguments and understand them, but in the end I think the document says what it says, and if we want it to say something else, we should settle the argument by amending it. I’m aware of the political difficulties with such a position.
2. But I think my reason for bringing up libel laws as an example earlier is still valid: for those who do support the current system of First Amendment exceptions, one of the plausible justifications for libel laws is that they redress a specific, quantifiable harm to specific individuals. Yelling fire in a theatre also creates an obvious immediate danger (*) which, to me, is not analogous to your general arguments about the negative social effects of pornography, or the kinds of criminal behavior that various non-criminal fictional representations might encourage.
(* And I think, although I wish someone would provide some legal background for this, that to prosecute a fire-yeller, you would have to demonstrate the actual danger to public safety that his behavior created in that case. It wouldn’t be enough to say that that particular class of speech is illegal.)
Amp, Eli — good points and good words. some comments i have on the last few posts:
Amp, in response to my “implication” that you’re a supporter of censorship, you wrote:
Well, Duh. :-p Keep in mind that I am a proponent of censorship – although not of DBI in particular. But as my followup post made clear, I do favor censoring some porn. Given my views, it seems to me that I have to support Miller, or something akin to Miller. I think that it’s important that child porn and rape porn be censored. At the same time, I don’t think movies like Lolita and The Accused should be censored.
Well, duh. :-} nobody here is calling for the censorship of Lolita or The Accused.
seriously, though — i understand where you’re coming from, and i certainly didn’t forget your original assertion that not all censorship is bad. but there is seemingly no way to enforce Miller (as it stands) in such a fashion that only the really immoral stuff like kiddie porn is affected; fringe art and entertainment always get sucked into the fray. of course rape porn and child porn are bad things. but the underlying acts in creating such porn (rape and molestation) already are explicitly illegal and damn near universally condemned. i don’t know if a censorship apparatus really brings anything to the table. (as far as “preventing” future abuse is concerned, i have read a good many arguments on this debate, and i have to say that i am not yet convinced that the simple existence of child porn and rape porn encourages more rape and child abuse. i know you feel otherwise, and i respect that; we’ll have to leave it to the psychologists, sociologists and criminologists to wrangle with that one.)
you asked:
Is there an example of someone who has been jailed or fined for presenting Mapplethorpe’s work, and whose conviction was not overturned on appeal? Has the existence of obscenity laws led to Mapplethorpe’s work being unavailable to interested viewers?
good questions. as far as i know, all of the Mapplethorpe-related trials have ultimately ended in acquittals. (anyone out there who can confirm/deny this is invited to jump in.) but that’s not really the whole story. we have NO WAY of verifying how many people may have been denied a reasonable chance to see Mapplethorpe’s work because of the mere presence of obscenity laws. anyone who followed his work at the height of his fame knew that it was a magnet for controversy. now, if the director of a museum in a city as big as Cincinnatti could be arrested and tried on child pornography charges for exhibiting Mapplethorpe (as happened in 1990), i don’t think it’s unreasonable to assume that there were curators of many smaller museums or galleries in conservative towns/states across the country who simply decided the issue was too dodgy to get involved with and were scared away from staging Mapplethorpe exhibits. that is a “chilling effect,” plain and simple. you shouldn’t have to live in New York or L.A. to be able to see controversial art. (although, jeez — i almost forgot about the Chris Ofili “Virgin Mary”/elephant dung/porn cutouts fiasco, where even NYC was at risk of succumbing to the moral police. and for the record, i am glad i got to see that piece of artwork in person.)
The question is, can the judicial system be trusted to make a sufficient distinction between rape porn and The Accused, and between child porn and Romeo and Juliet? I think yes. I don’t claim that the system is perfect – but overall, we’ve reached a point where we’ve been able to attack child porn very harshly without actually banning Lolita and Romeo and Juliet.
well, we are getting better at avoiding the banning of Lolita and R&J, though i’d hardly call the job finished. at any rate, i still think you’re being too optimistic about the judicial system. if anything, obscenity laws have done to the world of child porn exactly what anti-drug laws have done to the drug world: the product has just been pushed further underground, with no drop in supply; most of the people being busted are end users, not “manufacturers”; and those who are prosecuted often face inordinately stiff penalties.
There’s no question to my mind that the existence of obscenity laws carries a cost. If that cost is the censorship of DBI, however, then to me that is not a compelling reason to oppose obscenity laws. In my opinion – an opinion that is, I suspect but can’t proved, shared by many – the loss to our culture if people can’t easily locate and purchase DBI is negligible.
fair enough. i suspect you’re right: many (if not most) of us would view the loss of DBI as fairly negligible. losing access to DBI is not what most rankles me or fires my opposition to obscenity laws. it is the flawed, capricious nature of those laws, especially as laid down by Miller. look, i can understand people’s distaste for DBI, and i accept that most people won’t care if it is effectively rendered unavailable by obscenity judgments. but it does somewhat sadden me that some folks so POINTEDLY don’t care.
I would like to reply to all the comments that say ‘Rape porn is okay because it doesn’t harm anyone’…
A bit of a while ago in Japan, a man kidnapped a bunch of girls, each one at a time. He would video tape one being nude with a collar and chain around her neck and force her to smile. He would also video tape making love with her. And he would only let go of that girl as long as she introduces another girl to him. Do you know what inspired him to do this?
A pornographic video game about raping girls.
Search through the archives in Animenewsnetwork.com and you’ll find an article about it.
So yes, it CAN harm.
Sorry Samus, but that’s a piss poor argument. By the same logic we should censor/ban Road Runner cartoons which inspire some children to commit responsible acts.
Or maybe we should censor “Pulp Fiction” ’cause of all the teenage boys who thought the violence was so cool.
Or maybe the bible should be outlawed because of all the harm that it has inspired (crusades, inquisition, etc.)
And on and on. Yawn.
Responsible acts? What the fuck was I thinking. Read it as violent.
Umm… That’s not what I meant. I don’t think I remember anyone killing coyotes after watching Road Runner cartoons. The problem was that BECAUSE the guy played that game, the guy was making illegal porn tapes. It’s not just a thought, it actually happened.
So you’re saying that the SOLE reason the guy did that was because of the video game? Or that it’s the MAJOR reason? What proof do you have? What proof do you have that this even happened?
From Anime News Service:
A Japanese H-Game Otaku is reported to have kidnapped at least 13 women, some of them young girls, and forced them to re-enact scenes from the erotic games. According to the Mainichi Daily News, he tortures them, raped them and even forced some to marry him.
Let’s analyze this, shall we?
1) This is the only reference I could find when searching via Google. So it’s not supported.
2) “…reported to have kidnapped…” Reported by who? To where? Where did this happen? I searched th archives at Mainichi Daily News & was unable to find a reference. If you can find it and give me the link I’ll be happy to reconsider the veracity of this report. Where did you find the details of which you speak (video taping, forcing victim to find next victim, etc.)? Because I don’t see it on the Anime News site.
It doesn’t seem worth discussing unless there is some supporting evidence for your claims. I’ll be happy to discuss it if there are any actual news reports of the incident. And seeing as how it’s nearly 2 years old, the verdict and sentence of the perpetrator.
In fact try a search on Google with:
BiShoujo Game Mainichi Daily News
ain’t nothing but Anime News Network.
Search Mainichi Daily News w/ Bishoujo Game and…
0 site matches.
How likely do you think it is that the story is true?
And on the “Road Runner” bit, we’re not talking about killing coyotes but about hitting others w/ rocks & pans. It happens. Should we ban the cartoon? And what? no response to “Pulp Fiction” or the bible? Ban it. Ban it all before it gets to the children.
I’ve read quite alot on censorship and opposition of censorship and of course those on the latter side of the fence.
I have a resource I’d like to speak about that was censored up and until the last three decades. H.R. Giger’s work and artistry considered now to be artistic and classical in alot of minds, was not so in popular or interesting to those that saw or heard of this man showing his work. He could not find a publisher or a showroom to display his medium. Yet, many found his work enticing and provocative. For the early years of his work too provocative and definatly to risque. Until his “artwork” was transformed into film. After the first movie was released the work became a socially acceptable work of art in the provocative genre. You all make cases in both directions yet plainly leave out the fact that society seems to change its views collectively and cohesively. The norm becomes so by our acceptance of it which transforms our laws and bylaws to include the support for this previously perverse and degrading material to suddenly transform into a flower.
Arguing to one side or the other will do no good as the society itself will define what standard is socially acceptable and the view will float upwards and outwards to include our lawmakers…perhaps, taken years before that social acceptance is adopted by lawmakers.
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