CBLDF Case Files – Florida v. Mike Diana

On June 27, 1997 the United States Supreme Court denied Mike Diana’s petition for a writ of certiorari, thus ending a three year battle to have his obscenity conviction in the state of Florida overturned.

Mike Diana, the controversial creator of the ‘zine Boiled Angel, is the first American artist ever to be convicted of obscenity. His work contains graphic and often shocking depictions of society’s most serious problems: child abuse, date rape, and religious corruption.

Diana was first charged with obscenity after an undercover Florida detective posed as an artist to obtain copies of Boiled Angel. In a week-long case in March of 1994, a Florida jury found Diana guilty of publishing, distributing, and advertising obscene material. They agreed that his work “lacked serious literary, artistic, political or scientific value” because it did not compare to such works as The Grapes of Wrath or Picasso’s “Guernica.”

Diana was sentenced to a three-year probation, during which time his residence was subject to inspection, without warning or warrant, to determine if he was in possession of, or was creating obscene material. He was to have no contact with children under 18, undergo psychological testing, enroll in a journalistic ethics course, pay a $3,000 fine, and perform 1,248 hours of community service.

Two appeals to the State Appellate Court failed to have the case reversed or reheard in Florida. During the first appeal process, the prosecution used evidence gathered after the original trial, a move usually considered unethical. The courts refused to accept an amicus brief submitted by the ACLU, and responded ‘without comment’ to the second and final appeal.

Two of the three counts under which Diana was convicted were endorsed by the Appellate Court. The only count that was judged incorrect was the conviction for “advertising obscene material.” The Court agreed with Diana’s attorney that it was improper to convict someone for advertising material that had not been created yet, since the artist could not, at the time, know the nature or character of the work.

In May of 1997 the CBLDF and the ACLU submitted a petition to the U.S. Supreme Court to hear Diana’s case. George Rehdart, a well-known First Amendment attorney, assisted in preparing the petition. The Supreme Court denied the petition “without comment,” thereby ending all possibility of overturning Diana’s conviction.

Mike Diana is currently living in New York, where he was granted permission to serve out his sentence. He fulfilled his community service obligation through volunteer work for the CBLDF.

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