History of Comics Censorship, Part 5

Below is a web-friendly version of the CBLDF presentation on the history of comics censorship, which has been delivered to audiences of scholars, lawyers, advocates and readers in the United States. Please contact CBLDF about bringing this presentation to your group.

Scorched Earth: How Oklahoma City Destroyed Planet Comics

Being a defendant in the legal system puts a punishing strain on anyone who must endure the ordeal.  Beyond the tremendous monetary expense, there’s a crippling emotional cost that can lead people to plead guilty to crimes they are innocent of so that they can end the pain of being part of a case.  That’s what happened on September 5, 1997, when Planet Comics owners Michael Kennedy and John Hunter pleaded guilty to two felony charges of trafficking in obscenity for selling the Verotik comic Verotika #4 to consenting adults on the eve of their trial.

The case began in September 1995 when Oklahoma City Police received a complaint about Planet Comics from Oklahomans for Children and Families (OKaF), an obscenity watchdog group. Undercover police officers entered the store, purchasing copies of Verotika #4 on two occasions. The police raided the store later that month, confiscating several bags full of comics.

Local prosecutors identified eight titles with which to bring charges against the store. These charges included one count each of displaying material harmful to minors for Verotika #4, Boneyard Press’ Mighty Morphing Rump Rangers, and The Viper Series Official Art Book from Japan Books; one count each of trafficking in obscene materials for the Eros comics Screamers #2, Sex Wad #2, Nefarismo #5, and Beatrix Dominatrix #2; and one count of child pornography for Eros’ The Devil’s Angel. Altogether, Kennedy and Hunter were charged with four felonies and four misdemeanors for sale of these comics to adults. These charges carried a maximum prison sentence of 43 years.

Following the raid, Kennedy and Hunter were arraigned in handcuffs. The State argued that the two retailers were “dangerous criminals,” and set bail at $20,000. The CBLDF paid $2,000 to a bail bondsman to secure the pair’s release. The CBLDF also funded defense attorneys Mark Hendrichsen, James A. Calloway, and C.S. Thornton, whose efforts resulted in the State dropping charges against all titles except Verotika #4. Two felony counts of trafficking in obscenity remained, carrying a prison sentence of three to five years.

Planet Comics was evicted from its location and the owners were forced to take a less visible and convenient location across town. 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. The police organized another raid, this time on the home of John Hunter. They confiscated the store computer and 250 discs. A brick was thrown through the store’s glass door the following week. In March of 1996, the embattled store closed its doors for the last time. “I need to step back and rebuild my life,” said Kennedy at the time. “Luckily, thanks to the CBLDF, I don’t have legal bills to contend with on top of everything else.”

The State twice delayed hearing of the case, drawing out Kennedy and Hunter’s long ordeal. The trial was eventually set for September 8, 1997. Rather than risk imprisonment and a permanent felony record, the retailers agreed to plead guilty to the two felony charges. In exchange, they were granted a three-year deferred prison sentence and a fine of $1,500 each. Kennedy and Hunter were to serve no jail time if they were not convicted of any further criminal activities for a period of three years. After that time, the felonies were permanently removed from their records.

This action was undertaken without notifying the CBLDF. It is the Fund’s policy to only take on cases where the accused individuals agree not to plead guilty in exchange for reduced penalties. “To say that we’re all disappointed is an understatement,” said Susan Alston, then executive director of the CBLDF. “In human terms, we all share a sense of relief that Kennedy and Hunter’s ordeal is over. But that in no way diminishes the fact that they were convicted in violation of their rights as Americans under the First Amendment. Their conviction will have a chilling effect on what retailers choose to display and sell in ‘high risk’ jurisdictions. This is of the greatest concern to the CBLDF and to the comics community as a whole.”

Texas Prosecutes Manga

In 2000, Jesus Castillo, a clerk at Keith’s Comics, a comic book store in Dallas, TX was arrested and charged with two counts of selling obscene materials for selling manga  to an undercover police officer. The police officer bought the comics, which were labeled “Not For Children” from the adults only section of the store, initiating the first criminal prosecution for manga in the United States.

The titles at issue were comic book format translations of Demon Beast Invasion: The Fallen and Urotsukidoji: Legend of the Overfiend, two popular horror comics containing strong sexual content.

The prosecutor’s case hinged on the perception of comics as a children’s medium, and the assertion that the manga in question was not art, but was obscenity designed to target youth.

The Defense, funded by the CBLDF, argued that the comics in question are protected Free Expression under the First Amendment.

The two obscenity counts were to be tried separately, so the comic book for which Castillo was ultimately prosecuted was the second volume of CPM Manga’s Demon Beast Invasion: The Fallen,which was purchased by an undercover police officer Craig A. Reynerson from a section of the store clearly designated for adults. Even though the cover of the comic book did not depict nudity or sexual content and the book carried a warning that it was “Absolutely Not for Children,” Reynerson concluded that an obscenity offense had been committed.

The Comic Book Legal Defense Fund provided legal counsel and expert witnesses for Castillo’s courtroom battle. Scott McCloud, an award-winning author and artist and noted comic book authority, testified about the diversification of comic books over the years and described the four volumes of Demon Beast Invasion: The Fallen as Japanese horror/science fiction about an alien infiltration on Earth that included themes of love and evil. McCloud acknowledged that the book was “sexually potent in some places,” but he stated that the series and volume two specifically have serious literary and artistic merit because of the effort involved in the production of the books. When questioned whether he thought the scene in volume two that was considered obscene by the State was “perverted,” McCloud replied, “I think it’s disturbing…and it’s meant to be.”

Dr. Susan Napier, an Asian Studies expert testified regarding the cultural merit of manga, especially with regard to the medium’s status in Japan.  The status of these manga as part of a larger art tradition was a cornerstone of her defense.  A specialist in Japanese literature and culture who has studied and written extensively about Japanese manga and anime, Napier related that Japanese culture is fascinated with metamorphosis, bizarre creatures, and the apocalypse, all of which were depicted in Demon Beast Invasion. Napier further testified that the narrative, suspense, love story, and “beautifully drawn” scenes proved the literary and artistic value of the series, including volume two. Because the story also depicted the desire for power, Napier also believed that the series had political value.

A private investigator testified about comparable materials widely available in Texas.

Prosecutors did not offer conflicting expert testimony, only the testimony of the arresting police officer, who is not an expert.

In closing arguments, prosecutors rejected the artistic and cultural merit of both comics generally, and these manga in particular stating:

“I don’t care what type of evidence or what type of testimony is out there; use your rationality; use your common sense.  Comic books, traditionally what we think of, are for kids. … This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. We’re here to get this off the shelf.”

The jury sided with the prosecution.  Castillo was sentenced to 180 days in jail, a $4,000 fine and one year probation.

Immediately following this miscarriage of justice, the Fund and their lawyers persuaded the court to try the two obscenity counts as separate charges. Shortly, the State dropped the second count of obscenity, and the Fund prepared its appeal. In 2002 the Appeals court rendered a 2–1 split decision upholding Castillo’s conviction. Justice Tom James, writing in dissent, would have reversed the conviction on the ground that the State did not provide sufficient evidence that Castillo had knowledge of the content and character of the offending comic book. On the strength of James’ dissent, the Fund filed a petition for discretionary review to the Texas Court of Criminal Appeals. The petition was subsequently denied. At ends with Texas justice, the Fund took the case to the U.S. Supreme Court. In turn, the Supreme Court denied Castillo’s petition for writ of certiorari, bringing his three-year quest for justice to a close. In the end, Castillo served a period of unsupervised probation.

Offensive Customs

In October 2004 U.S. Customs in the port of South Carolina sent a letter to Top Shelf Productions, informing them that copies of comic book anthologies Stripburger (Vol. 12) #37 and Stripburger (Vol. 3) #4–5 had been seized. U.S. Customs alleged that two stories, respectively “Richie Bush” by Peter Kuper and “Moj Stub” by Bojan Redžić, constituted “clearly piratical copies” of registered and recorded copyrights.

“Richie Bush,” a four-page parody of Richie Rich, satirized the Bush Administration by superimposing the personalities of the Presidential cabinet upon characters in the original comic. “Moj Stub” is an eight-page Serbian ecology fable featuring brief homage to Snoopy, Charlie Brown, and Woodstock. Customs seized fourteen copies of Stripburger (Vol. 12) #37, valued at $280.00, and five copies of Stripburger (Vol. 3) #4–5, a value of $125.00. The covers of the seized books featured no graphics from either story.

At the urging of Stripburger, the Eastern European comics publisher responsible for the seized comics, Top Shelf publisher and then Comic Book Legal Defense Fund president Chris Staros brought the case to the attention of the Fund.  The Fund retained counsel with Attorney Gregg Meyers in Charleston, South Carolina, who delivered a letter to U.S. Customs stating that the seized comics are protected under existing First Amendment case law and should be immediately released or court action would be initiated. U.S. Customs recognized its imprecise conduct following the Fund’s intervention and released the books in question, Further, they refunded the $250 filing fee paid by Top Shelf to challenge the seizure.

Staros said, “Despite the low dollar value of the books seized, the principal of this issue—that of Customs overreaching its authority to judge what is parody and what is not—was definitely worth fighting for. Hopefully, the victory in this case will help prevent future incidents of this nature, where a publisher would have much more to lose if, for example, an entire print run was seized.”

Georgia’s Battle To Ban Naked Picasso

In October 2004 Gordon Lee, the owner of Legends comic shop in Rome, Georgia, participated in a trick-or-treat event in downtown Rome, passing out free comics. Among the thousands of comics passed out was a copy of Alternative Comics #2, a Free Comic Book Day anthology from publisher Alternative Comics. The book included an excerpt from Nick Bertozzi’s graphic novel The Salon, which depicted the first meeting between Georges Braque and Pablo Picasso. On three of the excerpt’s eight pages, Picasso is depicted painting in the nude. The content is merely illustrative of a moment in history, and is not sexualized in any way.

The book, allegedly, was accidentally distributed to a minor, whose parents filed a complaint with police. When confronted by police, Lee admitted the alleged distribution was a mistake and offered to make a public apology, but the apology was rejected and Lee was arrested days later.

In early 2005 the Board of Directors for the Comic Book Legal Defense Fund voted unanimously to financially support Lee’s defense. Initially, Lee was charged with two counts of distributing material depicting nudity or sexual content—felonies—and five counts of unlawful disposition of materials to minors—misdemeanors. Several of the counts did not name a victim.

The Fund’s legal team, led by Atlanta lawyer Alan Begner, challenged the constitutionality of the laws under which Lee was being prosecuted as well as challenging the counts that did not name a victim. The felony counts and two misdemeanor counts were dismissed, leaving three misdemeanor counts which were then consolidated into two misdemeanor counts. The remaining counts alleged that Lee had knowingly distributed material containing sexual content to a minor. The Fund maintained that the material in question was constitutionally protected, did not contain sexual depictions, and that the laws Lee was prosecuted under were unconstitutional.

In April 2006, after 18 months and numerous court appearances, the prosecutors dismissed the charges on the eve of trial because the wrong victim—a nine-year-old boy—was named. The charges were soon re-filed, alleging that there were in fact two victims: the nine-year-old boy and a six-year-old boy.

Lead counsel Begner said, “I have never—as a criminal trial lawyer for thirty years—seen a complete changing of the facts like this. Throughout the year and a half before that trial date, through written statements, the investigation, and the presentation of evidence before the grand jury, as well as the written accusation and indictment, the State had steadfastly asserted that the comic book had been handed to the nine-year-old. The dismissal of the charges today reflects the prosecution’s admission that everything that was presented as evidence before was untrue, and that they had stuck to the false facts through procedure after procedure in the case. How did a year and a half of statements based on one set of facts get changed at the last minute to another set of facts?”

In May 2006, the Fund’s lawyers filed several motions, including motions alleging prosecutorial misconduct and motions challenging the constitutionality of the harmful to minors law under which Lee was being prosecuted. Shortly before the hearing on these motions, the prosecutors brought the case back to square one for a second time, filing a new indictment and charging Lee for a third time.  Once again the renewed motions were filed, and once again the judge dismissed all of the defense’s motions.

Discussing the case in Comics, Courts & Controversy: A Case Study of the Comic Book Legal Defense Fund, Marc H. Greenberg writes:

After another year of delays, the trial of Gordon Lee was finally set for November 5, 2007. On the day before the trial, a story ran in the Sunday Rome News-Tribune, the local paper, that Lee had a prior 1994 conviction for distributing obscene material. Alan Begner, Lee’s lead counsel, pointed this out to the Court on the first day of trial, arguing that during jury selection, any juror who had read that story should be excused since the prior conviction was irrelevant and prejudicial. The Judge agreed and thereafter dismissed several jurors for cause based on their admissions that they had read the article.

Also, Begner made an oral motion in limine asking the Judge to preclude any testimony from the detectives in the case regarding their conversation with Gordon Lee about his prior conviction.  While the Judge declined to entertain an oral motion in limine the morning of trial, he made it clear that any such reference would result in a mistrial, and Assistant District Attorney John Tully told the court and Begner that he had advised the detectives not to discuss the conversation with Gordon Lee.

Then, in this case already marked by prosecutorial misconduct, an amazing incident followed. Tully began his opening statement to the jury by summarizing the events on October 30, 2004, when the comic was given to one of the Bishop boys. Describing the subsequent discussion between Lee and the police officers, Tully said: “Defendant also continues to get defensive with the deputies and at some point he tells the deputies that he had been through this before and had beat it. That’s what he tells the deputies.

Ultimately, the Lee case was declared a mistrial in November 2007. Rome District Attorney Leigh Patterson vowed to try the case again, but eventually agreed to drop the charges if Lee wrote a letter of apology, which Lee promptly delivered to Patterson’s office.  The total cost of the case was in excess of $100,000.