PeterDavid.net

This just stinks on ice.

This is the comic store I go to. In the decade-plus I've been a customer, I can't think of a more efficient & professional manager than Jesus has been. This case is what finally got me off my duff to get a CBLDF membership.

As a board member of the CBLDF, suggestions on what the best way for us customers supporting the store to voice our disapproval of this latest development? Should we be concentrating correspondence at the local, state or - now that the US Supreme Court has declined to hear the case - federal level? Or maybe all of the above?

Times like this, I am absolutely ashamed to live here.

I have not been following this as closely as I should have. How much attention has this received from groups that fight for First Amendment in general? How much coverage has this gotten in even the alternative press? (I think the mainstream media wouldn't pay attention to this.)

This is a bad thing, but I don't think that it's likely to lead to an avalanche of such cases. Rather, I think it will only harm the comics industry as retailers will be more worried than ever about carrying anything even remotely adult.

The thing that really did this guy in was those obscenity laws. Once it becomes an issue of obscenity all first ammendment protection goes out the window. My Mass Media Communications professor should be following this case because he was all over this type of stuff when he was teaching my class.

Even more disheartening, news.google.com doesn't find one reference to this case. So I guess it just doens't matter to a single non-comics media outlet. After all, it's only comics, it couldn't possible have any impact on the rest of publishing, right?

I think this stems from the continuing assumption that comic books are for kids only. I don't know all the facts of this case (if anyone has a link to the CBLDF's summary, please post it), but if a comic book made for adults was kept in an adults-only section and then sold to adults, there's no crime. Alas, it sounds like the prosecution's case is "comics for kids only." And the fact that it's across from a school makes it sound like they're making the entire comic store out to be a pornn warehouse.

Definitely an outrageous case. I can't understand why the verdict wasn't set aside at some point. Everyone, be sure to renew your CBLDF membership.

http://www.cbldf.org/

Neil

For a truly perverse read on these events, check out the discussion thread on this topic over at ... you guessed it ... the Byrne board. The person who brings it up says that this verdict is a "GOOD thing"(!!!!) and the prevalent view from those discussing it actually seems to be that the *comic book industry* is at fault for this travesty.

Maybe Kevin Smith could ask Ben and J.Lo to visit the store and buy an adult comic book. Then, half the magazines in America would be falling all over themselves to find out what the story is.

But gah, this is terrible news. I always thought this case was an obvious win, but I guess this shows the value of the CBLDF.

With so many cartoons on TV, I'm afraid that I will soon lose my late night skin flicks too!!

It's like a told someone about mature cartoons--it's the subject that dictates the audience and not the medium.

Crap. I suppose I shouldn't be that surprised, given the state in question and the current Supreme Court, but you'd think someone along the way might've said, "you know, we're doing a heavily stupid thing here."

Rotten, rotten precedent.

Bah.

TWL

There's also coverage on this at http://www.icv2.com including an interview with Castillo.

This should have been a no-brainer to the jury.

My WALDENBOOKS carries comics in a spinner rack. If I stand and look at it, then do a 180, my nose is 3 feet away from the latest PLAYBOY and PENTHOUSE covers. But that's okay, I suppose, because Waldenbooks caters to more than "just children."

Are there enough of us over-30 comic book readers to organize a "Million Geek March" on Washington? Or Dallas?

It really comes as no suprise that the Supreme Court failed to hear this case, unfortunately. To a casual observer, this case isn't such a big deal. How does the fate of one comic book dealer compare to the "danger to children" such comics present? Who cares about the details (such as adult comics were kept seperate from others, and the sale was to an adult). However, it does strike deep at the First Ammendment.

Now, I'm wondering when some over zealous DA with further political goals on his mind is going to go after Barnes and Noble. After all, I bought my trade paperback collections of Marvel's 'Alias' there. And the trade paperbacks are not seperated based on content. And I've never seen a B&N employee watching who's thumbing thru the trade paperbacks. And anyone who's seen tht first story, where Luke Cage is with Jessica, has to know this book is NOT for children.

My first inclination is to say: Screw CBLDF. The store was selling smut in violation of TX (state?) law across the street from an elementary school. Castillo was not "a clerk," he was the manager. The PTA didn't like it. So they did something about it-within the law. Problem solved.

Not that I expect much agreement here.

So who said Castillo was a clerk? No one here referred to him as anything but a manager. Spare us the straw man arguments, please.

Now all we need next is for one of the Dixie Chicks to say "I'm ashamed to be from Texas, the same place they put a man in jail for selling comic books."

:-)

(TX resident here and appalled comics fan fyi)

It is days like this that I am glad to be a Canadian.

you know a lesser known historical fact is that Texas citizens weren't even sure they wanted to be in America way back in the day.

With every passing day i regret their decision.

so then a convienence store across the street from an elementary school that carries Playboy or Hustler or Jugs is just as guilty?? is the local bookstore going to have to worrycause they sell both Harry Potter and Black Lace erotica??

the state obscenity laws probably cover selling obscene material to children. in this case an adult comic was sold to an ADULT. i mean really, WTF.

the problem here is the stupid, head up their ass idea that comics isn't a medium like television or film but just kiddy fare.

oh well, guess i'll be donating the CBLDF again . . .

Addenum- in Arlington (west of Dallas), a Hooters opened up in the "nice" southwestern part of town. Whoa- there was a hue and cry raised. They (you know who they are) blocked the restaurant's liquor license, and to this day, they're unable to serve beer or other alcoholic beverages.

(Got milk? sorry couldn't resist).

The Hooters restaurant managed to get the last laugh on their grand opening day. They served free beer. (They were prohibited from SELLING beer... but no restrictions on giving away a plastic cup of beer.) Should've seen the line!

I hate this Castillo case since it highlights the vulnerablity of the comic book industry. One person said "it was selling smut in violation of laws" but as mentioned in the main post- other adult stores were in the area. BUT the adult (store, clubs etc.) industry has more money and a thicker hide than the comic book industry.

eddie

"So who said Castillo was a clerk? No one here referred to him as anything but a manager. Spare us the straw man arguments, please."

From the icv2 article;

"Castillo Supreme Court Appeal Denied

Retail Clerk Serving Obscenity Sentence"

They refer to him as a "Clerk" in the article too.

Far Sider, the Jesus/Keith's Comics bust is known to have been politically motivated. Dallas's mayor pro tem was trying to help a constituent who was upset over the price of Pokemon cards. The elementary school is right of two of Dallas's main drags, so parents of elementary school age kids have more important worries than "smutty" books.

And if, after all of that, you still believe they were worried about the children, why hasn't Priscilla's, a sextoy store just a couple blocks further down, been targeted yet?

You're right; the article does refer to him as a clerk. Which still seems irrelevant to the merits of the case.

Peter David: 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.

Luigi Novi: We're all moralists, Peter, in that we believe in morals. It would be more accurate to call these censors pseudo-moralists.

I'd like to take that prosecutor in that case and all his like-minded ilk and have them hanged. The problem with this jerk is that in condemning an entire medium as not being allowed to tell mature stories, he is once again confusing form with content.

This shit just fucking STINKS.

This case is certainly disgusting and unfair, but keep in mind that Texas is a legally uber-conservative state. It is quite possibly the -most- conservative states in regards to the law. There are just as many (if not more) liberal states that would never follow this lead. I do not think this "precedent" will overflow in to very many other forums. Keep in mind it was the decision of a lower court of Texas (I believe) and is thus only -binding- law to the courts below it. The Texas Supreme Court is not bound, nor are any other state's courts, or federal courts (unless the federal courts are bound by Texas law because of circumstances).

Having said all that, I am interested in doing some research on this case and the topic. I am looking for a reliable source of information for the demographics of comic book purchasers (i.e. what percentages are adults, children, age breakdowns, etc.). Can anyone help with this? Thank you!

The injustice of this case is just mind-boggling. The case should never have even reached a hearing do to the lack of evidence that Castillo did anything wrong. I really fear the current political climate here in the U.S. There seems to be such a strong movement to censor everything and tell people what to read and think that I never thought I would see in this country again. Everything seemed to be so progressive until about 4 years ago and now we are going backwards with liberties and civil rights being thrown out the window faster than I would have ever thought possible.

J Veitch- If the community has made no effort (or makes no effort in the future) to restrict pornography sales by other businesses in close proximity to the school then I might agree that the action was hypocritical. They now appear to have established a precedence to take further action. As a former city official (not in TX), I generally support any community's efforts to try to limit the sale of pornography in their community.

The only local media attention that I'm aware of the case receiving was in this story in the local weekly alternative paper:

http://www.dallasobserver.com/issues/2001-01-04/news.html

Far-Sider...

The store was hardly selling "smut," as two experts' (ignored) testimony bore out. Additionally, this did indeed all begin, as near as anyone can tell, from a mother who, at the height of the Pokemon boom, was upset at the prices the store was charging for after-market imported Pokemon singles. The cards being at the front of the store, and the adult section being at the rear in its own separate section, she was never anywhere near the books that "the children need to be protected from," and thus could not know of their existence. Feeling the cards were overpriced, rather than simply taking her business elsewhere, she made a scene about her "friends on the city council" who would "put the store out of business."

Meanwhile, as pointed out elsewhere, just around the corner from the store's location are a short string of sex toy/lingerie shops, a major bar area notorious for the patrons' lack of respect for the residents of the area and parking/trespassing/loitering/etc. laws, and - just another mile or so down the street - at least two adult book stores.

Also keep in mind...the book in question was initially a special order for a customer who either didn't return for the book or chose not to purchase it after the store acquired it (and, as I'm sure you know, given the nature of comics distributors, particularly with imports like the book in question, once the store gets it, it's theirs until they sell it...they can't return it). It was kept in the separated adult section, clearly labeled "For Adults Only!" (with the exclamation mark), and sold by an adult to an adult.

So let's not delude ourselves or others...this wasn't about "protecting the children from obscenity." The store's still around and doing well. Yes, it's moved a couple blocks down...because the shopping center it was in was torn down for a Walgreen's, not because of this issue. The only possibly negative effect on the store itself was that, upon its move, they instituted a "general audiences" section of the store (very small, very little goods available) and an "over 18" section, with the bulk of the store's stock, on the off chance that someone might take offense. And, of course, Jesus now has a conviction on his record, which has closed many a future door for him, never to be re-opened.

And all because someone got in a snit about the price of cards that was determined by supply and demand.

Addenum- in Arlington (west of Dallas), a Hooters opened up in the "nice" southwestern part of town. Whoa- there was a hue and cry raised. They (you know who they are) blocked the restaurant's liquor license, and to this day, they're unable to serve beer or other alcoholic beverages.

This is not entirely correct, the Hooters in Southwest Arlington currently sells alcohol. I was there last week.

JasonP: For a truly perverse read on these events, check out the discussion thread on this topic over at ... you guessed it ... the Byrne board. The person who brings it up says that this verdict is a "GOOD thing"(!!!!) and the prevalent view from those discussing it actually seems to be that the *comic book industry* is at fault for this travesty.

Luigi Novi: One or two did, but I noticed that the majority of them there indicated they thought it was a bad thing.

>>It is days like this that I am glad to be a Canadian.

Unfortunately, we can't be too proud of that in citing a case like this. Customs Canada has routinely seized materials it deems "obscene" when entering Canada. That includes some comics, which certain publishers won't even bother to try and ship into Canada. CC will just grab it at the boarder.

The most obvious case of CC's behaviour is the running battle they've had with a gay and lesbian bookstore in Vancouver. CC has seized shipments of books, saying they were obscene. Some of it was actually fairly tame stuff, if memory serves.

The courts in Canada have ruled against CC from doing this, but I believe the bookstore is still having problems.

Having said all of that, the court decision in Texas still frightens me. The US is becoming a very dark place these days.

Thanks Stinger, I appreciate the correction. I haven't gotten around to checking out that Hooters. I'm not really a fan of Hooters food after all LOL

eddie

Does anyone know if the briefs or the courts' rulings are available on-line anywhere? I'd like to see for myself what happened, rather than relying on the Comic Books side of things and the Public Opinion side of things.

davidh

Why is everybody so shocked? This is fuckign TEXAS we're tlaking about here! People get life sentences for stealing a SINGLE CAN OF BEER! It's former governor and our current "President" *wink wink* once mocked a death row by imitating and laughing at her pleas for mercy in a Talk magazine interview and no one called him on it! In either 96 0r 97, they passed a law which forbid any state institutions from "owning stock in companies that pedal immoral materials." This waste of taxpayer dollars was to pressure the heads of a Texas university (I forget which one) into dropping their shares of Seagram's liquor which owned MCA, which owned Interscope, the record label that carries your friend and mine, Marilyn Manson!

So if CBLDF can't win a case that, by their very own press releases, should have been a slam-dunk, why should anyone donate to them?

Kind of hard to believe a good attorney couldn't overcome prejudicial statements supported by insufficient evidence.

davidh: I'd like to see for myself what happened, rather than relying on the Comic Books side of things and the Public Opinion side of things.

Good luck finding anything other than information dispensed by CBLDF which, though it might be accurate from their point of view, is very biased.

Luigi Novi: One or two did, but I noticed that the majority of them there indicated they thought it was a bad thing.

But did you notice who the biggest cheerleader for censorship was?

" So if CBLDF can't win a case that, by their very own press releases, should have been a slam-dunk, why should anyone donate to them?

Kind of hard to believe a good attorney couldn't overcome prejudicial statements supported by insufficient evidence. "

It's been known to happen. Japanese American internment, etc.

Also, three members of the current court would certainly vote the ideological line in areas that are MUCH more cut and dried than obscenity (creation over evolution). If a court can vote that way on a matter that's objectively based, then it would be no stretch of the imagination to see a court vote on ideological hot buttons like this.

This is asked of curiousity, has CBLDF ever had a victory? I ask this because every case that I have seen information on were losses for CBLDF.

As an aside, Roger Tang, obscenity is alot more cut and dried than creation over evolution in the legal arena.

Does anyone know if the briefs or the courts' rulings are available on-line anywhere?

For the appeal to the Texas 5th District Court of Appeals, here is the majority opinion:

http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_02.ask+D+11251151

And the dissenting opinion:

http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_02.ask+D+11240861

If those links don't work search for Jesus Castillo on this page:

http://www.5thcoa.courts.state.tx.us/search_o.html

Corey, not too proud to be a Texan today

"So if CBLDF can't win a case that, by their very own press releases, should have been a slam-dunk, why should anyone donate to them?"

They can't win every fight, but they've won a few. From what i've seen most of their victories follow this pattern:

1)Store owner gets visit from someone (police officer sometimes) who is irate over a scantily-clad woman on a poster or cover or hentai visit and threatens to shut them down.

2)Owner Calls CBLDF help line.

3)CBLDF lawyer calls would be censor, explains the law and that the CBLDF is willing to sue over this.

4) Censor realizes that there are legal consequences to their threat and apologize to store owner to avoid a lawsuit.

This doesn't get much attention.

"This is asked of curiousity, has CBLDF ever had a victory?"

They won the Kieron Dwyer vs. Starbucks case (there was a settlement.) The Elfquest case was dismissed, IIRC. Even in this case they managed to get one of the charges dropped. They've won a few. Check out www.cbldf.org for more info.

I've let my membership lapse for a time, but now I've renewed. i suggest that more people join up and check out their catalog as well. I've had fun chatting with Chriss Oar and Charles Brownstein at their booths at conventions (as well as comic book celebritied at their booth and members parties at conventions. Frank Miller, Diana Schutz, Bob Shreck, Matt Wagner can be really gracious) and i suggest that also.

I'm taking a mass communications class that requires a research paper. looks like I've found my topic.

Jon Roth: They won the Kieron Dwyer vs. Starbucks case (there was a settlement.)

Actually, Dwyer is only allowed to use his parody logo for non-commercial websites and is not allowed to make money off of his image. So I wouldn't consider this a victory.

"As an aside, Roger Tang, obscenity is alot more cut and dried than creation over evolution in the legal arena. "

Really? I don't think so.

But I merely point out that three justices are willing to overlook the evidence (which is unanimously on the side of evolution; how much more do you want than reproducible results in the lab?) in order to force ideology into the scientific curriculum. I find THAT to be scary, let alone what their probable stance would be in a much grayer area.

He is able to sell versions of it in his comics (website http://members.tripod.com/~LowestComicD/)

Starbucks was trying to get him to pay their lawyers for their legal bills and they tried to block any parody style image. If the CBLDF hadn't gotten involved, I think that he would have been financially ruined.

The law being what it is, many settlements are neither complete victories or failures.

More case info (wins and losses at http://www.cbldf.org/casefiles/index.shtml

Luigi Novi: One or two did, but I noticed that the majority of them there indicated they thought it was a bad thing.

When I read the thread, only a few people had posted. And, as someone above hinted at, Byrne himself was one who seemed to be saying that the industry has itself to blame. Meanwhile, the poster who started the thread said that if it forces a return to more all-ages superhero books, then, "This is a GOOD thing," which just makes my stomach turn.

Yeah, if censorship has one *possible* positive side effect for me personally, then it's good! What an attitude.

To paraphrase an old But I Digress column, the problem with cheering people who censor something you don't like is that eventually, those same people get around to censoring the stuff you DO like.

Peter:

A small point of clarification.

The decision by the Supreme Court not to hear this case does not create precedent, in that the Court will never examine this issue. Instead, for reasons great and sundry, the Court has declined to use this case to examine the issue. So the Court can look at this point at a later date.

The precedent is only binding in Texas. Other states' courts can thumb their noses at this...

IMHO, it's clear this is Stupid with a capital "s". Consider a case nearly twenty years ago, where a protester outside of a convention center in Houston (where the Republicans just happened to be holding their national convention), lit a flag on fire. It's real obvious that the protester was going to get convicted in Texas for violating the law prohibiting flag burning. The Supreme Court (in a 5-4 decision) said that the protester's right to free speech under the First Amendment would be abridged by such a prosecution.

This, of course, is no comfort in the Castillo case. There may yet come a time when a similar (and, if possible to conceive, even more ridiculous prosecution) brings this issue back to the Supreme Court for review. Then, the Court might see the need to step in and clear up such a clear abridgement of First Amendment rights.

Okay... I went to the links that were given earlier that has both the majority and dissenting opinions on this case. It was a little tedious, but I was able to make sense of most of it (who knew attending law school would pay off?). This is truly a strange and weird case....

The main issue here seems to surround the idea of what can be construed to be obscene. The Majority argues that the comic in question (Demon Beast Invasion) falls into this category because of a three part test set forth in an earlier case. The Dissenting opinion, rather than try to address the issue of whether or not the comic is obscene, only has qualms with the foreknowledge of the manager of the store (Castillo). So the issue at bear here for the Dissenting is whether Castillo knew that he was peddling in obscene books.

Okay... now I'm pretty sure most of you have scrolled past my comments as legal claptrap can be tediously boring, but for those of you still here...

What I'm wondering is this- how do the Adult Bookstores, etc. get away with this? The Dissenting brings up the case of BURDEN v STATE (2001) in which an undercover officer got ahold of a porno from an adult videostore... so I'm thinking, "DUH! That's what is normally sold at an Adult Videostore!" The point I'm making here is how can the State of Texas issue a Business License to people if they are going to traffic in goods that are construed to be illegal by the State of Texas?? Just what did you think would be in an Adult Bookstore? Copies of "Fishing & Reel" or "Brides Today?" Yeesh!!

But nonetheless... I can see how Castillo lost this case- according to the very liberal wording of the three-part obscenity test virtually anything can be deemed to fall under its gloomy wing. So the deck was pretty much stacked against Keith's Comics to begin with... they weren't really concerned with the location near a school or kids in general, they were mainly focusing on whether the book was obscene or not- which it was according to the test.

All in all this is leaving me (and I'm sure the rest of you) with mixed emotions... I'm sad at the thought of censoring artistic expression, angry at the thought that this was all politically motivated (because of Pokemon cards?), and absolutely freakin' confused that the State of Texas can allow Adult businesses to operate within it's confines when it's own laws mandate that the very wares those selfsame businesses are dealing in are illegal!! What is wrong with Texas?!!

Okay... that's it from me folks... sorry for the long-winded rant! *haha*

My first inclination is to say: Screw CBLDF. The store was selling smut in violation of TX (state?) law across the street from an elementary school. Castillo was not "a clerk," he was the manager. The PTA didn't like it. So they did something about it-within the law. Problem solved. Not that I expect much agreement here.

Well, when everything you say is wrong, you're not going to get much agreement, no.

1) The action was set into motion not because of the PTA, but an angry mother who vowed revenge on the store because she didn't like how much they were charging for Pokemon cards.

2) Adult bookstores selling far more explicit material than the comic shop are within the same neighborhood, thereby establishing a community standard and tolerance. So the store was well within the law.

3) The PTA never came and spoke to the store owner, ignoring every possible opportunity to address the matter without resorting to legal action.

4) The judge stated that the proximity to the school could not be a factor in the jury's deliberation, as per the law. The jury ignored that.

5) Expert testimony was offered as to why the comics did not fulfill the Supereme Court standard of "smut." How the material was not without redeeming social value. The expert testimony was not refuted. The law would indicate that this alone should have required the jury to find a verdict of not guilty. They ignored the unrefuted expert testimony.

6) The jury decision was predicated on one simple argument made by the prosecution that flew in the fact of the 1st Amendment: Comic books are not eligible for protection under the First Amendment. The prosecutor asked that protection under the Constitution of the United States be set aside. The jury did so.

This was not under the law. This was a travesty of the law.

PAD

And just to add to what I posted just a few minutes ago...

Why haven't they hauled in every manager and employee of every gas station and bookstore that carries copies of Playboy, Hustler, etc.? Those would almost certainly fall under that same category! For that matter, why stop there? Why not just haul in Maxim magazine for it's suggestive pictures and explicit articles... or every automotive magazine that sports buxom chicks in small bikinis next to cars? Where do you draw the line? And why can't the Court see that this entire case stinks of political agenda?

This is making me angrier the more I dwell on it...

Another reason to hide the fact that I'm an American... at least I'm not from Texas...

America, land of the free (unless those in power decide they don't like you)

While questioning Gaines, Seabrir Kefauver held aloft a comic book featuring a cover drawn by artist Johnny Craig for a comic titled Crime SuspenStories and remarked: “This seems to be a man with a bloody ax holding a woman’s head up which has been severed from her body. Do you think that is in good taste?” Having just said that he would publish anything he felt was in good taste, Gaines had no choice. He answered, “Yes, sir, I do, for the cover of a horror comic.”

Some things you just can't defend--even when jacked up on diet pills, apparently.

Having said all of that, the court decision in Texas still frightens me. The US is becoming a very dark place these days.

Oddly, didn't the U.S. Supreme Court recently come out with a hugely sweeping privacy decision? Seems like it came from some place in the southwest... maybe Texas?

This was very disheartening to read. I truly hope comics are not in for another 1950's-1970's era of censorship as a result of this action.

I have now, and will continue to be a member of, and donor to, the CBLDF.

Elie

I would think these nazis would be to busy burning books by Mark Twain, William Shakespear, and J.K. Rowling to be conserned with kids reading funny books. They shame us all!!!!

So if CBLDF can't win a case that, by their very own press releases, should have been a slam-dunk, why should anyone donate to them?

Because if there weren't a CBLDF there providing legal assistance, things would have been very worse, not only in this case but in many, many others. For one thing, the CBLDF did manage to get one count of obscenity dropped.

You aren't going to win all the battles. You may not win any. But it's sure as hell better to go in fighting the good fight than to just stand there and let the bad guys roll all over your rights.

JSM

Since I usually play devil's advocate (I'm a state prosecutor, so it's nice that my job is also my hobby), I thought I'd wade in. It's not altogether obvious that this case presents a problem.

Before anyone breaks out the torches and pitchforks, I'd like to preface my opinion by saying that I'm a free speech absolutist: if I were in charge, there wouldn't be an obscenity exception to free speech. That said, here in the real world, "obscenity" is not and never has been protected by the Constitution. There is nothing new in this case. All of the judges reviewing the case agreed with the determination by the jury that the book was legally "obscene." At some point we have to wonder if they were right. (Has anyone here read the thing? The court opinion was pretty graphic. The defense in this case was placed in the unenviable position of having to argue that a woman being screwed by a tree root was essential to the story...) Also, the fact that other things are being sold in North Texas may mean only that other people are violating the obscenity law, not that Castillo is innocent.

The expert testimony was not rebutted, but that doesn't require the jury or the judges to agree with them, any more than a jury has to convict someone just because the defense doesn't call any witnesses. It's not true that the jury had to acquit Castillo simply because the expert testimony wasn't refuted.

Finally, the medium (comics) didn't seem to have anything to do with the appellate opinion. If the material is obscene, it doesn't matter whether it's a comic book or a leather-bound hardback: the First Amendment doesn't apply. If it isn't obscene, it doesn't matter whether it's a comic book, a leather-bound hardback, or a bumper sticker: the First Amendment does apply. It's not at all clear that the medium or the school proximity played any effect on the verdict. They almost certainly did not in the appeal.

The upshot is, this case may stink, but it stinks in a way that the law has stunk for a century or more, so let's not overreact.

You are assuming that the jury knew the whole story. I've been on a jury in Texas before and you do NOT get to hear everything because of the fear of bias. Did the jury know that there were other adult stores in the area? Did they know the extent (or lack thereof) that the PTA went to?

Chances are the jury heard that 1) there was a law, 2) the store violated the law. I doubt much more was presented to them. End of case.

Texas is typically loath to overturn a jury verdict as well without misconduct. In most situations, this is a good thing. Ignoring a judge's instructions does not constitute misconduct though.

What it boils down to is that - in all liklihood - the original defense was poor, and the Texas Appeals System did their usual job.

Mark Lindsay: Chances are the jury heard that 1) there was a law, 2) the store violated the law.

That is all that the prosecutors need to present. What difference does it make that other adult stores in the area are violating the law?(And in this case, that was shown to the jury) It doesn't change the fact that the store also was violating this law. Whether you agree with the law or not the jury's only duty is to decide whether the law was violated by the defendant, not if the law was just or if others are violating the law.

I'm surprised there are so many mind-readers here, who know that the jury ignored those who testified that the material did have socially-redeeming value, in violation of the law, rather than weighing it against the testimony of the prosecution witness which said it did not and reaching a decision based on their perception of the witnesses and their respective testimony, which is what a jury is supposed to do.

And let's not forget that the defense lawyer made no less than two legal mistakes which prevented two of their points from being considered. If the defense had objected to two things that the prosecutor introduced (that the store was near a school, and that the witness said it was obscene), then they would have been allowed to have those issues considered at appeal. But because they did not object, the jury was allowed to consider that information. The judge's ruling about not introducing the proximity to a school came in a pre-trial motion, which the jury did not see or hear.

This is the defense's mistake, and mistakes of this nature are not appealable, as I understand it, except in the case of ineffective assistance of counsel. And it's certainly possible that Castillo could get a new lawyer and appeal again on the basis of ineffective assistance of counsel, which would consider whether his lawyer's lack of objection to those two issues warrants a new trial.

davidh

This proves without a doubt that as any group of people grows larger, then perhaps consequentially, their I.Q. will inevitably fall away to nil. With that said it still seems crazy to me that nobody even paused and thought,"Hey as long as we are holding a witch burning...did anyone remember the bratts? because what we're doing--this is nuts!" I do love the idea of forcing this thing into the media spotlight and thereby giving it the attention it deserves. Perhaps that Kevin Smith idea isn't a bad way to go considering how much pull he has lately and he loves causes. Not to mention that he is one of the best comic writers in the biz...next to our PAD of course. What a team they'd make...but I think that's another post altogether.

From Tony...

What I'm wondering is this- how do the Adult Bookstores, etc. get away with this? The Dissenting brings up the case of BURDEN v STATE (2001) in which an undercover officer got ahold of a porno from an adult videostore... so I'm thinking, "DUH! That's what is normally sold at an Adult Videostore!" The point I'm making here is how can the State of Texas issue a Business License to people if they are going to traffic in goods that are construed to be illegal by the State of Texas?? Just what did you think would be in an Adult Bookstore? Copies of "Fishing & Reel" or "Brides Today?" Yeesh!!

I don't know if it's still current, but in North Carolina adult bookstores had to have a certain percentage of non-adult publications available for sale. So, in the bookstores, there would be stacks and stacks of old paperback novels, puzzle magazines, and those old 3 packs of comic books that were repackaged for convenience stores. Thus, the percentage of adult to general audience was achieved. I always found it ironic that old issues of "Betty and Veronica" and "Rom" could keep the adult bookstore in business.

Well, I certainly am ashamed of being from Texas. Both because Bush is from here(though technically his family is from Conneticut) and this atrocious legal action.

I can't believe that in America of all places we should have to have a CBLDF. But I'm glad their here and if nothing else, this story got them my money.

Col

Ken: Good luck finding anything other than information dispensed by CBLDF which, though it might be accurate from their point of view, is very biased.

Luigi Novi: In addition to the Dallas Observer link Nytwyng provided above, here’s another one: http://reason.com/0304/ci.bd.obscene.shtml

Luigi Novi: One or two did, but I noticed that the majority of them there indicated they thought it was a bad thing.

Den: But did you notice who the biggest cheerleader for censorship was?

Luigi Novi: The biggest cheerleader for censorship there appeared to me to be Linda, the one who started the thread with her first post. Byrne did argue that the industry bears part of the responsibility, and to a certain extent, I agree with him, based on the arguments he presented about educating the public on the medium, and keeping a company’s adult material clearly distinct from its kiddie or all-ages fair. But I don’t recall him saying that what happened was a good thing.

I just read this article on ComiX-Fan, and....

THIS IS FUCKING BULLSHIT!!!!!!!!!!

A guy sells an ADULT book to an ADULT, and this shit happens?!?!?!?! And their case against him is basically because comics are usually seen as a medium for kids, and this store just happened to be in a certain area?! What the fuck is wrong with these fucking people?!?!?!?!?! They really have no fucking idea, do they?! Comics are not just trash for kids, they are another form of literature, which in itself is also a medium of free and creative expression. You find all kinds of books in shops. I think that's also part of the problem; they don't see comics as literature. I mean, Jesus Ker-rist!!!!!! And what about adult videos being sold in video rental shops along with videos for younger audiences. I mean, as with comics, they're clearly rated for the appropriate audience! SO WHAT THE FUCK IS GOING ON HERE?!?!?!?! This poor bastard has had to suffer jail time, a hefty fine, and a hell of a lot of distress for him and his family, and FOR WHAT?!?!?!?! Jesus!

By the way, my repeated usage of the words "fuck" and "Jesus" indicate that I am utterly appalled, upset, and disgusted. Goddamn the bastards. Now I'm going to go and recompose myself.

Disclaimers: I am not a Texas resident or in any way qualified as a political operator or comics creator.

That outta the way:

If the DA, judge or sheriff/chief of police (?) are elected positions, it might be sweet if someone with the appropriate talents and grudges prepared campaign materials in comics form for use by their opponents in the next election.

Satirical stuff, perhaps in the vein of Ted Rall or the "Mallard Fillmore" strip. The point would be to deploy the "kids' medium" to give the culpable adults some encouragement to find new jobs.

And if they complained? "Gee, don't see why you're so upset...comics are just a kids' medium."

Just my $0.01 -- I ain't putting much value on my opinion here.

You know, I can't say I like this either. But even so, I'm going to have to point out in all due fairness that if there's any question that should really be asked about all this, it's if the story itself was that neccasary to write in the first place.

If there's anyone I suppose could be blamed, it's whoever wrote the stupidity in the first place. Thanks to things like that, in their overbearing quest to show that comics are capable of displaying nightmares and worse, I'd say it only helps give a very bad impression of the industry as we know it. With the industry flagging as it has since 1995, does this really benefit the future of comics? The story practically reeks of sexism if you ask me. I don't know just now who the idiot is who wrote that graphic novel(and how!) but I would like to respond to him by saying something like, "thanks for helping drive the image further home that comics are full of horrible horrors and giving outsiders the impression that they're nothing but an excuse for the authors to wallow in utter filth, presumably to taunt the public moralists." I'll bet he did that as a dare to the moral bastions to come after them via legal action, because the industry is suposedly shielded tight.

Goodness me, what an amazing theory I came up with! And I suspect that even Grant Morrison must be going in that direction with his rightfully castigated series called The Filth at Vertigo. While it's true that the writers have certain creative freedom, they could still be exactly what's bringing down the industry as we know it. If the industry doesn't start asking itself if this benefits itself on the long term, they could end up falling down because of it. But overall, it's up to everyone else to be the judge.

What difference does it make that other adult stores in the area are violating the law?(And in this case, that was shown to the jury) It doesn't change the fact that the store also was violating this law.

But that's the point: obscenity is defined by community standards, and if no one had a problem with the adult bookstores, then clearly the community standard was pretty loose. (Also, laws are supposed to be enforced even-handedly or not at all; selective enforcement is a Bad Thing.)

I'll bet he did that as a dare to the moral bastions to come after them via legal action, because the industry is suposedly shielded tight.

Avi, you should do some research before coming up with these theories. The comics in question were Japanese, and Japan has long accepted a continuum of content of all sorts. The creation of "Demon Beast Invasion" had nothing at all to do with the American comic book industry.

Was the law circumvented? If there is an obscenity law, and the book was found to be obscene (and such a use for a tree root seems to qualify) then the law was circumvented.

We may not like the outcome, but the system worked.

Supplier beware.

Luigi Novi: In addition to the Dallas Observer link Nytwyng provided above, here’s another one: http://reason.com/0304/ci.bd.obscene.shtml

This is an op-ed peice that only re-hashes information that was supplied by CBLDF.

The only thing that I have seen that was not the skewed version presented by CBLDF was the link to the actual court of appeals decision provided by Corey Tacker(BTW, Corey, thanks for that!).

Doug Atkinson: (Also, laws are supposed to be enforced even-handedly or not at all; selective enforcement is a Bad Thing.)

The thing here is that you don't know that these other places are not being investigated or charged with selling obscene materials. We don't have enough information to believe that this is a case of selective enforcement. CBLDF's accusations of political motivations are not enough to prove that it is selective enforcement, especially with their record of being less than honest in their press releases.

This was not under the law. This was a travesty of the law.

Amen.

My dad, a journalist prof, has a bumper sticker which reads:

"Talk is cheap. Free Speech is not."

The First Ammendment is getting shredded these days.

Travis

Assuming the facts presented above are accurate, then this case sounds as though there was vindictive prosecution.

As others have noted, why weren't other retailers selling materials more likely to be considered osbcene prosecuted? If this is a crackdown on obscenity, where are those subsequent prosecutions, like of that adult bookstore that was a few doors down the street?

Another reason to suggest that what happened was vindictive prosecution is that the "sting" was of an adult buying adult material. If law enforcement was truly concerned about obscene materials getting into the hands of minors, then why didn't they send in a minor to try and purchase the comic?

This prosecution amounted to bullying. This is indeed the kind of legal action that the CBLDF has to deal with. Because as others who've posted have noted, the entire issue of obscenity really wasn't addressed in the court (there was no mention of the jury being instructed about the three-part test to determine whether something was obscene, as per the Supreme Court's ruling in Miller v. California; and as others have pointed out, if the jury had tried to apply the Miller test in this case, the fact that there's an adult bookstore a few doors down suggests that community standards wouldn't be offended if "obscene" comic books were sold).

CBDLF is fighting the good fight. There are some (and clearly not all) law enforcement officers and police officers who abuse their discretion. CBLDF exists to fight these bullies.

George Guay

(Aside: Small irony. If indeed the instigator of this prosecution was a parent upset over the price of trading cards, does that mean that the parent would want government-established price controls over such items? Ignoring the issue of who decides what a fair price would be set and the entire notion of let the marketplace establish values, then how about price controls for the cost of oil...)

George Guay: As others have noted, why weren't other retailers selling materials more likely to be considered osbcene prosecuted? If this is a crackdown on obscenity, where are those subsequent prosecutions, like of that adult bookstore that was a few doors down the street?

But as a customer at this comic book store stated at http://forums.delphiforums.com/n/mb/message.asp?webtag=ellis&msg=37914.21 (read post #34) states: Dallas' handling of obscenity charges is becoming infamous around here.

So other stores are being prosecuted. This is not an isolated incident.

This isnt the first time that comic books have come under fire. I believe it was in the late 50's or 60's in any event "The moral majority" will always attempt to destroy that which they do not understand or fear. I don't believe this will end the comic industry as we know it,but it is unfortunate that one man was made to suffer for some stupid Texan political agenda.

Regards:

WSJ3

Ken: Are other stores in the same neighborhood being targetted? (And I can't prove they aren't, for the obvious reason that you can't prove a negative. The burden of proof is on you.)

Avi, you should do some research before coming up with these theories. The comics in question were Japanese, and Japan has long accepted a continuum of content of all sorts. The creation of "Demon Beast Invasion" had nothing at all to do with the American comic book industry.

Oops, thanks for pointing that out, Doug. Now we're getting somewhere. Hmmm. I'm going to have to admit, as some others may too, that manga does have some things, if not all, that've made me blush in flabbergastness(?). One could wonder then if this could end up giving a bad impression to the public of manga as well as anything lurid produced in the US. Pay attention to the exact origin of the source material, everybody. It could help to get some better insight of what's going on.

Doug AtkinsonAre other stores in the same neighborhood being targetted? (And I can't prove they aren't, for the obvious reason that you can't prove a negative. The burden of proof is on you.)

No, the burden of proof is not on me. According to the Appealant Judge http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_02.ask+D+11251151 :

Finally, we reject appellant's argument that the book is not patently offensive when considered in light of contemporary community standards. In making this argument, appellant relies on the testimony of his private investigator, who presented other magazines purchased near Keith's containing “more graphic” depictions than “Demon Beast Invasion.” Assuming all of the books admitted were comparable to the comic book at issue, the fact these books were available does not mean they were not likewise obscene; it could suggest that other persons are engaged in similar activity. See Burden, 55 S.W.3d at 616. We conclude the evidence was factually sufficient to establish that (1) appellant knew the sexually explicit content and character of the comic book, (2) the book lacked literary, artistic, scientific, or political value, and (3) was patently offensive. Accordingly, we overrule the third point of error.

So, what we can conclude is that the private investigators evidence was not strong enough to suggest unfair legal activity toward Keith's Comics or that the book is not patently offensive when considered in light of contemporary community standards. We can conclude that others in the community may be breaking the law, but we cannot conclude that no legal actions are being taken against those others that are breaking the law.

PAD:found himself convicted of selling an adult comic book to--get this--an adult

Actually, he was found guilty of selling obscene(found to be obscene under the Miller test) material that was unprotected by the First Admendment. Quite different than just an adult comic book.

PAD: The Texas case essentially strips First Amendment protection from comics.

Only if it is obscene material. You can be a good writer with a flair for the dramatic extreme, but in this statement there is no truth to back it up. This did no harm to the First Admendment protection of comics but rather took legally-deemed obscene material out of the market place.

I'm gonna agree with Ken's statement about the status of the First Amendment in lieu of this case. PAD said that, "The Texas case essentially strips First Amendment protection from comics." This isn't exactly true... Ken is right in pointing out that writers are able to use a wide variety of techniques to convey a story idea, etc. But that's a debate for another time...

What I want to focus on is that the case isn't stripping the First Amendment protection from comics (after all, this case only has binding in the State of Texas) it's questioning the whole procedure and status of the "obscenity tests" that Texas uses to grade such material.

If there's one thing that I learned from attending law school it's this: Justice and the Law are not exactly the same thing.

This whole case reeks of political shortsightedness and manipulation- read the write-up the Dallas Observer gave it over here:

http://www.dallasobserver.com/issues/2001-01-04/news.html/1/index.html

I'm gonna still stick to my earlier comments about Texas' obviously ineffectual and substandard dealings when it concerns dispensing with legal action. Their obscenity tests require a medium to be judged by a body of people in its value overall. So these people deem it to be acceptable to let the local Kwik-E-Mart guy sell Hustler, etc. (which they keep in stock all the time) but balk at the comics shop that happens to have a porno comic for sale in an adult section of the store (and they don't normally carry stuff like that, it was a special order that was cancelled last minute... the adult section of their store is reserved for mature-themed and violent material).

So what I bring to the table is this: when you prosecute somebody for trafficking in obscene material because it violates a law, that's legally legitimate (I may not like it, but it's the law until voters say otherwise). But when you "pick and choose" certain individuals/businesses to attack, while leaving other, more obvious targets alone, that's a travesty of justice. I know that it's been pointed out earlier that Texas seems to be going on a rampage dealing with obscenity, but the Dallas Observer keenly points out that TWO cases were brought against Castillo but the later one was quickly dropped when allegations of "politcal agendas" were brought up.

To semi-quote the Bard, "Something smells rotten in the state of (Texas)."

I just read my earlier comment, and I fear I've embarrassed myself with the repeated swearing in my post. I wrote it as soon as I read this story, and I was initially very worked up by the unfairness and strangeness of the case. I felt the urge to swear. A lot. I would like to apologise for any offence caused to anyone. I'll try to curb my tongue in future whilst posting.

The bastards.

By the way, I forgot to mention; the only obscenity is in the people who started this, the prosecutions, the jury, and the legal system.

(2) the book lacked literary, artistic, scientific, or political value,

This is the point that not one, but two experts' testimony refuted. Their testimony put the specific book in question in its societal context of manga and its place in Japanese culture and the artistic merits deriving from those origins. In addition, Scott McCloud's testimony put comics in general into context in American society and explained how the medium is not purely "kid stuff."

The prosecution's victory hinged completely on repeatedly insisting that comics are, indeed, intended as purely "kid stuff."

As far as the other stores carrying equally or more graphic content only "proving that other stores are breaking the law," I can't agree. In the legal system, is not "obscenity" defined by "community standards?" That being the case, the material in other nearby stores establishes that the community's standards would not consider the material "obscene." And, if more graphic material is not obscene, it follows that this is not.

We can conclude that others in the community may be breaking the law, but we cannot conclude that no legal actions are being taken against those others that are breaking the law.

I'd say that we can make a reasonable conclusion to that effect. The Borders down the street from the store's old location doesn't appear to have any problems from carrying Penthouse (which they still do as of yesterday) or books such as Anne Rice's "Sleeping Beauty" books. The Condom Sense and Condoms To Go stores across from Borders don't appear to be in any trouble for selling sex toys. And, at least one of the adult book stores is doing well enough to have recently opened a large new location--probably difficult to do if fighting a legal battle like this one.

Of course, the one thing all these other stores have in common is that they didn't sell after-market import Pokemon singles, making a friend of someone on the city council mad.

Regarding the comment on another board that "Dallas' handling of obscenity charges is becoming infamous around here," I'd wager that the poster in question was referring to the decade-plus battle between homeowners in the Bachman Lake area and a small string of topless bars. Last week, the homeowners finally won, with the three clubs shutting down (at least one of which reopened a short distance away the very next morning).

Nytwyng: This is the point that not one, but two experts' testimony refuted. Their testimony put the specific book in question in its societal context of manga and its place in Japanese culture and the artistic merits deriving from those origins. In addition, Scott McCloud's testimony put comics in general into context in American society and explained how the medium is not purely "kid stuff."

But the appealant judge disagrees about the strength of these testimonies:

We recognize that appellant presented two experts to testify as to the literary, artistic, and political value of the comic book; however, the jury also had Reynerson's opinion that the book was obscene because of the sexual content it depicted. In particular, he testified the comic book contained acts of sexual intercourse, oral sodomy, masturbation, excretory functions, sadism, masochism, and lewd exhibition of the genitals. Reynerson testified he looked at the book from front to back and believed the book appealed to the prurient interest in sex. Reynerson did not believe the book had any literary, scientific, artistic, or political value. The jury heard competing opinions and apparently found Reynerson's opinion more compelling. Moreover, the jury had the comic book. The fact that the two defense experts did not find the material to be obscene would not prevent the jury from deciding it (1) lacked serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of the community.

I'm curious... what exactly is Ken doing here? I mean, what is your point Ken? Why is it you find no cause for disgust (or even just mild frustration or annoyance) with this decision? And more to the point, why do you feel the need to come to a site that is, let's face it, fairly predisposed to feel upset by this case and argue for the prosecution?

My fiance is an intellectual properties attorney who works off and on closely with certain comics creators. Her take on the matter at hand thus far, having read the depositions and documents linked to by others here (and elsewhere) is that the prosecution essentially won the case on the grounds of the material being obscene with little import placed on its point of sale. Now as others have already stated this is ridiculous because, presumably, all of the local businesses that sell so-called "obscene" material have at one time or another applied for (and I'll give them the benefit of the doubt and say received) a business license from the state of Texas. Which means, I believe, that the state is issuing licenses to vendors that it could reasonably suspect will be selling objectionable, "illegal" materials.

Does this seem retarded to anyone but me?

But I digress... I really am just curious why Ken (and one or two others) feel so strong a need to come here and plays devil's advocate.

Haunt: I mean, what is your point Ken? Why is it you find no cause for disgust (or even just mild frustration or annoyance) with this decision? And more to the point, why do you feel the need to come to a site that is, let's face it, fairly predisposed to feel upset by this case and argue for the prosecution?

I don't understand why do I have to feel disgust, mild frustration, or annoyance at a decision that was made through legal means and doesn't really have long-reaching effects? Why should I not post on this site when I am posting using factual evidence without being (intentionaly) insulting? If PAD wants me not to post, then I will not post. But, I do not see where my posts are out-of-line.

Sorry that I disagree with the urgency or the despair that others feel in this matter.

So I take it, then, that the appelate judge is an expert in Japanese culture, and thus qualified to make that determination?

By Reynerson's definition of graphic sex equalling obscenity, then that Borders I mentioned needs to be hauled into court, as Penthouse contains such explicit content, as well, including the occasional fantasy/supernatural/science-fiction element. Of course, I'm sure we can agree that hauling Borders (or even one of their employees) into court is pretty darned unlikely.

Particularly given the origins of the situation, it seems pretty darned clear that nothing about the outcome of this case has anything to do with law. I guess the angry mother did indeed have friends in high places. I hope she's happy with what she's done to an innocent man's life for no other reason that she thought the store had some high prices.

Haunt: And more to the point, why do you feel the need to come to a site that is, let's face it, fairly predisposed to feel upset by this case and argue for the prosecution?

Also, with this line of reasoning, I would not be allowed to post to any comic related site because the knee-jerk reaction on most of those sites is to take CBLDF at face value and be upset at this case.

Nytwyng: So I take it, then, that the appelate judge is an expert in Japanese culture, and thus qualified to make that determination?

No, but he is an expert in Texas law and is qualified to make that determination within the law.

Well Ken, I suppose I had that coming didn't I? I wasn't calling into question your right to speak your mind, here or anywhere else (that would be for the concerned mothers with friends on the city council to decide). I was generally curious why you feel so strongly that we, the knee-jerk comics fans should not be concerned or even upset about this.

Clearly YOU aren't upset with the situation... otherwise you'd be posting like mad, expressing your opinions for all to read.

Oh, wait a minute.....

As you were. Post away. Let not our paranoia upset your litigiously moderated world. The law is on your side, after all.

Well, I, for one, hope Ken and the others do stay. I'm sure others will argue this more eloquently than I but I think that PAD has made his feelings about censorship and attempts to silence opposing views pretty clear.

But more importantly, this brings to mind something I was thinking about, and which has been brought up before, when PAD had posted some of his political opinions. Some people said things to the effect that people can argue whatever they want but in the end, they're not going to change anyone's mind.

Well, I have to say that what Ken and others have said *has* changed my mind. When I first read about this, I reacted to it as emotionally as many others here have, but the more I read from those who approached this from the legal standpoint, the more I agree with the conclusion I think they reached: It's unfortunate and not the decision I would like to have seen but the jury did the right thing based on the facts they were given and the decisions they were asked to make.

Yes, it's unfair but the law frequently is. Will this unleash a backlash against comic books in general? Could be. This country has taken a turn toward conservatism that I would have sworn was impossible five years ago?

But if we wish to protect our beloved medium, I think we need to do it with cool heads and not adopt the policy that... ahem... *others* have adopted of, "You're either with us or against us."

So I take it, then, that the appelate judge is an expert in Japanese culture, and thus qualified to make that determination?

No, but he is an expert in Texas law and is qualified to make that determination within the law.

Please enlighten me as to how being an expert on Texas law can nullify the artistic merit, etc. of a work created within the context of another culture's values. It would appear that the only way to do so would be to ignore that context.

Pack, I'm not suggesting that Ken leave, or not post his thoughts. I apologize that is seems that way. As I mentioned above my fiance is an attorney that works with writers, including comics writers, and so I fully understand (and appreciate) the fact that this case was won by "the letter of the law". I'm marrying an attorney and I've been on a jury before. I get that the jury has a set of guidelines that they have to follow and they are required to turn in a verdict based solely on the letter of those guidelines (though that does not in any way guarantee that this works every time).

I, and I believe others, are not arguing that the jury "cheated". That may or may not be true. The prosecution may or may not have bent the facts or misrepresented evidence or whatever. I'm sure the parties involved appreciate the fact that there are intelligent, informed people such as Ken that are willing to spread the word like he is. My concern is the unfortunate precedent set here, and the emotional impact of cases like this. I could care less if the minutiae of the litigation were followed to the finest detail. I'm reacting emotionally to the bigger picture.

So the prosecution (according to some) won fair and square. Bully for them. I'm still upset... and frankly just a touch scared.

The fact that the two defense experts did not find the material to be obscene would not prevent the jury from deciding it (1) lacked serious literary, artistic, scientific, or political value or (2) would be offensive to the average member of the community.

This is what the appelate judge used to make his decision. The cultural values of the comics origins were not his concern. His concern was whether the decision of the jury was arrived at legally and he determined that it was. He did his job.

BTW, Pack, thanks alot. That was quite a compliment.

Pack,

One of the "facts" presented to the jury in the initial case to keep in mind is this: that comics are solely intended for children. That was the axis around which the prosecution's entire case revolved. I think it would be a fair statement to put forth that the vast majority of us on this particular board - given PAD's primary work venue - realize that this "fact" is far from accurate. So, with that essential point being so flawed and incorrect from the get-go, simple logic suggests that the rest of the prosecution's case is similarly flawed. That Jesus' attorney appears to have done an inadquate job in countering necessary points obviously didn't help matters. The jury was presented with evidence and testimony to the contrary, by Scott McCloud, no less.

If only juries could be given "required reading," and made to read McCloud's Understanding Comics. Of course, given the prosecution's attitude on the matter, they probably would have countered with Seduction of the Innocent.

Nytwyng:That was the axis around which the prosecution's entire case revolved.

That was just part of what the prosecution's case revolved around. The center of their case is that the material purchased by Reynerson is obscene. In fact, reading the appelate judges assessment(the only thing we have to go by outside of CBLDF's press releases) shows that "comics being for kids only" is not even a part of their case. Though, according to CBLDF it was part of the closing statement, there is little to no evidence proving that one statement swayed the jury's decision.

What too many seem to fail to realise is that the general public (lets call them Joe Average) does not know/believe that comics is more then childrens entertainment.

And obviously, the experts who testified to present the jury with the "fact" that it is more then just entertainment for children did not manage to convince that jury.

They listen to the witnesses, they looked at the comic, and to them it was offensive.

End of story. All the rest??? Horseshit.

They were not there to decide if other stores were selling offensive material. They were there to decide if in that instance the material was offensive.

Saying that others are doing it to prove that what you are doing is not wrong is never a good argument.

Also aving a Pono store 2 blocks away makes no difference, to Joe Average, porno material is aimed at adults and it will be sold to adults only.

And to Joe Average, comics are aimed at kids and can be sold to kids, so it can more easily find it's way into the hands of a kid.

Joe Average does not tell the difference between a Max or a Vertigo or a regular title or a comic from Japan. For Joe Average a comic is a comic period.

And it does not matter to Joe Average if in Japan there is comics or anime with rape, gang bang, bestiality or whatever, what matters to them is what is sold here and how it is percieved here.

And sadly, there is a lot more Joe Aeverages then there is comic readers. So no matter how comic experts thinks that comics can be for adults too, Joe Average does not know or believe what is seen as fact by the comic reader.

But comics "experts" and readers too often seem to forget that fact.

Ken; good posts, keep up the good work.

Hey Ken, I pseudo-sarcastically referred to myself and other comics fans that are upset by this decision as "paranoid" earlier. But I have to ask, why the continued references to the CBLDF reports being so suspect? Have you had evidence in the past that their data is apocryphal, or are you just... what's that "p" word again...?

Haunt,

Yes, I do find their information to be suspect.

To give an example, here is a link to their information on the Planet Comics case in OKC http://www.cbldf.org/casefiles/planetcomics.shtml

Now,having lived in the area at the time and being a customer there for a short period I can say that all of the information presented by CBLDF is not accurate.

CBLDF says: Planet Comics was evicted from its location and the owners were forced to take a less visible and convenient location across town.

The truth: They were already three months past due on their rent when this happened and had received notice that they would be evicted if not paid in full.

CBLDF says:During the next few months, sales dropped as much as 80% as many customers assumed Planet Comics had closed, and many parents would not permit their children to patronize the store.

In March of 1996, the embattled store closed its doors for the last time.

This may or may not be true, but it is definitely an exaggeration.

The truth is that this arrest was not wide-knowledge outside of the comics community and very few parents probably stopped permitting their children to patronize the store.

Planet Comics was very much in debt when the arrest happened due to poor business decisions. Had the arrest not happened the store would have had the same problems.

One big ommision in the report was that Planet Comics did not have an Adult-Only area and the comics they were charged with selling were within reach of any kids that would enter the store.

They did violate the law.

So, yes I am skeptical when the only information available is from CBLDF. But I am skeptical when any organization with an agenda is the only source of information on any news.

And there you have it. See? Better informed than I am. I didn't know the finer points of that case, thank you for filling in the details. It doesn't change my feelings on the current topic, nor does it affect my view of the CBLDF as a whole. But in the immortal words of School House Rock, "Knowledge is Power." So thanks.

Anyone else have information to add to Ken's assessment of the Planet Comics scenario? Or any other examples of CBLDF apocrypha?

Thanks to Doug and Zhen Dil Oloth for backing me up on the clerk comment.

By the way, I think the outcry over this case is really starting to spread. I just saw a bumper sticker that said "Honk if you love Jesus."

As to the question of whether nearby porn shops were selling things "more graphic" than the comic book, I submit respectfully that you will not find anything "more graphic" than "Demon Beast Invasion" in any mainstream porn, simply because of the limitations of real human anatomy. While I can't say for sure if it has redeeming social value, it is certainly one of the most explicit things I have ever seen. For those not familiar, it involves tenticles. LOTS of tenticles.

I guess the question is whether it matters that they are DRAWINGS, rather than images of real people engaged in real sex acts. But it is hard to argue that the desire to see women raped by demons, even in the context of a narrative arc, constitutes more of a "a prurient interest in sex" than simply wanting to watch a pornie.

I don't agree with this ruling, regardless, simply because I don't think the prosecution proved their case under the law. I also personally think that an ADULT should have the right to read things devoid of social value if he wants, as long as nobody gets hurt in the process, but that isn't how Texas law is written.

Unfortunately, the SCOTUS rarely hears this kind of individual criminal case unless it involves a major social issue. There is no real desire to revisit Miller, so they are not going to pay attention to a case in which every lower court agreed that the Miller test had been applied fairly.

Hmmmm, I'm not entirely sure I agree with PAD on this one. The 'comic' in question is pretty obscene, it's hard to deny that fact. It seems the only cultural relevance is that violence to women somehow makes the Japanese reader happier, that's just sick. What if the comic dealt with Nazi concentration camps and similar activities would it be obscene enough for this case to be right. This isn't a plea to be flamed, just my opinion. And just to clarify I am an adult and I do love comics, particularly PAD's stuff, I just think maybe somethings shouldn't be allowed.

Joe Average is a moron.

Ken claims to have inside knowledge about the Oklahoma case. I must ask that he provide sources for his information and for his "Opinion" that the CBLDF lied or bent the truth. Where in the media did CBLDF make their claims? How did the CBLDF force the media to only use "distorted" statements?

When somebody writes an article, their editor usually picks which comments made the final cut, and usually the cuts are made for space reasons, not clarity.

Thanks to the farsider it was worth the trip for the bumper sticker snicker.

WHAT WOULD JESUS DO???

Call CBLDF

I think Neil Gaiman and PAD are amazing writers and I respect their opinions immensely, that said, I tend to agree that some of the CBLDF info is a little biased (which is fine it’s supposed to be), I would be more interested in finding out their (Neil and PAD’s not so much CBLDF”S) opinions of what is obscene!

Let me first say that the first amendment is worth defending on all accounts. (At least you got it in writing) I am not quite clear on the part of whether freedom of speech includes things that are obscene or not but will carry on with my rant anyhow…

It seems to me that so many issues are being addressed by this single case that it gets distorted. The blatant revenge tactics of the pokemon parent show that it has nothing to do with a child actually being accosted by smut or anything obscene. (Which is something you should haul someone into court over - clerk, manager or bishop...)

Never mind the adult book/video stores, what about regular video stores, 711’s, and every music store that carries a CD with a parental advisory on it. Give me a break a parental advisory, you’d have to first point out to parents that there is such a thing let’s not even mention video games) (If pop music, slurpees and video games aren’t kids stuff.???)

Obviously as long as there is a demand, there will be a supply and I really don’t object to having laws that govern the way “obscene” material is distributed to protect those that shouldn’t or choose not to partake (including SPAM grrr). If the artists and writers are distributing material in a responsible manner then there shouldn’t be an issue yet here there seems to be some question on how the goods were distributed. Even though I have read some of the opinions about this particular comics content (wouldn’t be my choice although I’d still like to make it) they are still drawings not photos like Playboy etc…

Is there other material considered obscene right beside? Doesn’t Playboy have sexy comics inside? Are nude mags considered literature? Does the comic actually have an advisory on it? Too many issues touch on this case to make a fair precedent or even an educated judgment call.

In a way it is a shame that more adults don’t get the fact that comics aren’t just for kids, in fact I would wager to say that if I had kids there are very few comics I would let them read, but that’s beside the point. I like that most other adults don’t get it.

And to Joe Average, comics are aimed at kids and can be sold to kids, so it can more easily find it's way into the hands of a kid.

Then, in this case, "Joe Average" must be illiterate, as the cover of the book in question clearly states that it is for adults only.

Ken,

If we are to take your being in the same area as the Oklahoma case and a one-time customer of that store as your being more in tune with the realities of that case, I must wonder why you choose to dismiss similar familiarity with this case as not being more in tune with the realities of this case.

It seems that some are missing the point of the repeated references to other nearby locations selling similarly explicit material. It's not a matter of suggesting that two wrongs make a right. It's a matter of pointing out that, if obscenity is defined based upon "community standards," the community in question has established a standard of, if not acceptance, tolerance for sexually explicit material.

What makes a drawing of a demon raping a woman more "obscene" than photographs of a man in demon makeup "raping" a woman, (a description that can apply to at least one explicit pictorial in an issue of Penthouse...again, a magazine readily available and out in the general magazine section at the Borders just down the street from Keith's former location)? Most likely answer: Because, as has been shown, the prosecution succeeded in convincing the jury that comics are intended for kids; this is a comic, so it must be aimed at kids, and that's just sick. Despite, of course, that notice on the front cover.

As far as the book's cultural and artistic merit. Well...at the risk of over-generalizing, the Japanese culture is a bit on the freaky side when it comes to sex. In fact, this was the topic of last week's installment of TechTV's Wired for Sex. Example: A popular tv show in Japan consists of participants coming on the show to partake in bondage and/or humiliation fantasies. For some reason, rape fantasies seem to be a bit more popular in Japan. As explained on the TechTV show, this may be, in part, due to the increasing independence of Japanese females, who had traditionally been more subservient; the society is still struggling to integrate modern values and practices with ages of tradition.

Going even further with the "community standards" application, given that the appellate judge alone upheld that the book met the definition of "obscenity," I must wonder when a single person began to constitute a community. If we can apply the standard of a "community of one," then who do I need to call to get the businesses I find "obscene" run into court?

Or do I first need to have a "friend on the city council" to set loose the hounds when I get upset that those businesses are charging more than I want to pay for collectibles?

Actually, he was found guilty of selling obscene(found to be obscene under the Miller test) material that was unprotected by the First Admendment.

No, he wasn't. It was the "display", not the sale, that he was convicted of.

As for material unprotected by the First Amendment, I don't see any exceptions listed in the Amendment itself. Instead, this is material that has been left unprotected by court reinterpretation of the First Amendment... a tragic reinterpretation, particularly since the Miller test seems a clear violation of the Equal Protection clause of the 14th Amendment. Rulings that depend on "community standards" mean that the law is not being applied equally, but is rather discriminating on the basis of the individual community at hand.

This did no harm to the First Admendment protection of comics but rather took legally-deemed obscene material out of the market place.

No, it placed criminal charges on an individual, and its chilling effect took a wide range of material out of portions of the marketplace, as there is no way of telling what some crazed prosecutor and deliberately misinformed jury may rule to be "obscene". This is a law that you cannot know whether you are breaking, as the "legality" is independent of the facts of the matter and your ability to avoid prosecution is based solely on your ability to predict some future perception of the matter.

"So I take it, then, that the appelate judge is an expert in Japanese culture, and thus qualified to make that determination?"

Why is it that I can already hear the monotone "Japanese culture is irrelevant"? And, I guess from a legal standpoint it may have been. But from a logical standpoint it shouldn't be.

I doubt that I'd qualify as an 'expert' on the matter, but I have spent some time there and have gotten to know very well many people from different walks of life and different age groups, from jaded Tokyoites to old-fashioned farm country dwellers.

And one of the interesting thing here is that, while their standards about such things [sex/obscenity in comics] seem a lot more relaxed than ours, people there generally seem to feel a LOT safer than they do on the streets in North America. Women, in particular, don't tend to worry a whole lot about being raped in some back alley, or mugged for their Louis Vuitton handbag. Contrast this with how many women carry mace in their purse in North America [or at least take self-defense classes] and one wonders who's got it right as far as protecting the community goes?

But, as Judge Wapner (ret'd] once remarked, " ... you're talking common sense. Unfortunately, the law has very little to do with 'common sense'."

Whining about an abuse of justice, when in fact the law was upheld, is useless.

Complain about the law, instead. Write your Congressman, Senator, et al.

Don't whine about the system working exactly like it's supposed to. Be a part of the system and get the law changed.

Not sure if anyone is reading these posts many days after it was started, but I just read about this latest development. Like the first post, I had my sub for years at the shop. Although I am disgusted with the comic they sold and feel they made a bad decision to sell it, it is absurd to convict Jesus of obscenity and imprison him for 180 days.

I shopped there for years. I knew there was an "adult" section, but nothing was ever displayed in a way that would catch your attention. As a 30 something adult, I did wander throughout the store looking for comics that might interest me, and never saw anything obscene. This was clearly vindictive on someone's part. I am shocked the jury reached this decision and frankly do question his defense lawyers. I am a very conservative Christian with strong convictions, and as stated before, would protest them selling this comic. But they in no way endangered a child by doing so. I would be interested to find out more about the defense arguments to see how they convinced the jury.

I must admit, I have lived near that store for years and do not know of adult bookstores just blocks away -- not that they don't exist, but they are not lit up with neon signs like they are in other parts of Dallas. But I would have a much stronger objection to them then to Keith's comics.

Bottom line, however, I could care less about the legal issues. I am concerned about Jesus. I have not yet read if he is at least being give "probation" or if they will be actually forcing him to stay behind bars for simply being a manager of the store. (And to answer earlier comments, it is accurate to call him a clerk because he was for years. The owner is very active in the store, so while Jesus did manage it, it is really just a matter of perspective.) Jesus is one of the most courteous and helpful employees I have ever met. It is sad that he is being punished for such a minor issue when others are not.

James

I went ahead and followed the link to the 5th Circuit of Appeals Court of Texas (http://www.5thcoa.courts.state.tx.us) above and read the opinion.

As best I can tell, the most serious problem isn't the ruling itself: sometimes one's "trouble with the law" is quite literally trouble WITH THE LAW. Here it is:
-=-=-=

A person commits an offense if, knowing its content and character, he promotes or possesses with intent to promote any obscene material or obscene device. Tex. Pen. Code Ann. § 43.23 (c)(1) (Vernon 1994). Obscene means material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
...[balance edited]
-=-=-=-=
It basically establishes an absolute (i.e., a crime) based on wholly relative standards, and its entire construction in wholly contrary to the very core of the first ammendment.

In essence, this law states that whatever the "contemporary community" decides is offensive is also criminal. The first ammendment was constructed with the express intent to prevent not so much individuals from ever being improperly charged, but from such laws ever being passed to begin with. The language of the Constitution begins, "Congress shall make no law ...", etc.

Makes me wonder how such judges ever get through college and law school without about being able to read English.

I don't understand how these obscenity laws could have ever come to exist.

[New Jersey has a similar problem with its eluding statute, which doesn't specify any tangible criteria for a time or distance in which a motorist is presumed to have noticed police pursuit lights (and is henceforth presumed to be actively eluding a law enforcement officer), nor does it specify any criteria to distinguish it from simple non-compliance. It is a felony-level conviction that can literally be all in somebody's head (i.e., rest on nothing other than misunderstanding or bad judgement of a police officer. If you recall, nothing was in the news more several years ago than the judgement of a great many NJ state police officers) Though rearely misapplied in good faith, there is nothing to prevent officers with some other agenda from charging you with it, seeing that there is no tangible evidence they must introduce to obtain a conviction for it.

Many of the Nazi-era anti-semetic criminal convictions were legally legitimate: it was the laws themselves that weren't.]

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