no defense against
comic book censors
November 5, 1998
By Franklin Harris
Forget that "freedom of speech" stuff. It no longer applies.
We killed it in order to save the children.
Just ask Mike Diana, whose unbelievable story -- something out of Kafka or Mao's Cultural Revolution -- was told earlier this year on "Good Morning America."
Diana is the first and only American artist ever convicted of obscenity for his artwork.
His crime? He wrote and drew a comic book -- a crude, self-published effort titled "Boiled Angel."
Now, truthfully, "Boiled Angel" is something most people would regard as either blasphemous (if they're a Christian) or tasteless (if they simply have 23 pairs of chromosomes and walk upright). At one point, the book's protagonist is depicted using religious icons as, well, sex toys.
You get the idea.
But the First Amendment protects both the blasphemous and the tasteless.
Narrow-minded Iranians might sentence artists to death, but we enlightened Americans would never do such a thing. Right?
Not so fast, my friend.
"Obscenity" is the First Amendment's loophole. Never mind that the First Amendment itself says simply that Congress shall make no law abridging freedom of speech.
The Supreme Court created an exception for "obscenity." But it didn't bother to define what "obscenity" was, and opted instead to leave that task to "community standards."
So, anything potentially can be obscene, depending upon how uptight your neighbors are.
Diana's own Florida community decided that "Boiled Angel" was obscene, based upon the prosecutor's oh-so-clever argument that the comic didn't compare to works like "The Grapes of Wrath."
Therefore, the comic wasn't art and its graphic content wasn't constitutionally protected.
Never mind that Diana couldn't even know he was creating legally obscene art until after the jury's decision, when it was too late.
And never mind that no one ever sold "Boiled Angel" to a minor. "Boiled Angel" was simply a comic book.
And everybody knows that comic books are for children.
Also, Diana probably didn't expect 12 jurors to position themselves as art critics. But I digress ...
Diana's conviction was appealed to the U.S. Supreme Court, which refused even to hear the case.
Diana is still serving out the terms of his three-year probation.
He was fined $3,000, ordered to perform 1,248 hours of community service and forced to take a journalistic ethics course (even though he isn't a journalist). Additionally, he had to undergo psychological testing.
Most frightening of all, during his probation, Diana's residence may be searched without warning in order to insure that he isn't producing, or in possession of, "obscene" materials.
Diana's cause was aided by the Comic Book Legal Defense Fund, a Maryland-based organization that defends the free-speech rights of comic book creators, publishers and sellers.
The CBLDF has also come to the aid of comics shops in Florida and Oklahoma, where overzealous prosecutors have attacked shops that have dared to sell adult comic books to adults.
People think comics are just for children, so any adult material published in comics form is suspect.
But comic books are sometimes intended for mature audiences. And even the conservative Weekly Standard magazine recently published an article praising comic books for their sophisticated, thoughtful subject matter.
It took 30 years for comics to again become serious. In the '50s the major comics publishers used anti-comics hysteria as an excuse to censor themselves. They adopted a "comics code" that forced out of business creative, upstart publishers like EC Comics.
Fortunately, few comic creators today bother to gain Comics Code Authority approval for their art.
But while the code is dead, the censors remain. And they have prisons and prudish juries at their disposal.
Anyone who believes in freedom and the right of artists to create their art -- even if their art is comic books -- should donate to the CBLDF.
The Comic Book Legal Defense Fund has a Web site at www.cbldf.org and also can be reached at (800) 99-CBLDF.