News

December 12, 2000

Trouble in Texas: Update

We previously reported that a Texas retail clerk was indicted on two counts of promoting obscenity for selling adult manga (Japanese comics) to adults. The cases are being tried separately, and in September a jury returned a guilty verdict on the first charge. Our local counsel has already filed his intention to appeal that verdict, which brought a sentence of two years probation and a $4,000 fine. The second trial is scheduled for December.

Perhaps the most compelling of the several issues that will be brought to appeal was the jury's failure to apply a national standard to the question of the material's artistic and literary merit. Two expert witnesses-comics scholar and cartoonist Scott McCloud and manga expert Dr. Susan Napier of the University of Texas at Austin-testified that Demon Beast Invasion: The Fallen #2 was not merely a collection of sexually explicit pictures, as the prosecution alleged. Rather, they explained that the comic told a story, and that story, while intended for adults, is artfully wrought and has literary worth.

Whatever the jurors might think about the comic, the third leg of the "Miller test" for obscenity requires that the material have no redeeming literary, artistic, or scientific value. The Supreme Court has held that the standard for establishing artistic value is not a local one but national. Furthermore, the high court has stated that a national standard of artistic worth is best determined by experts. Jurors must be guided by expert testimony when it is given. When experts disagree, the jury must decide between them. But in the absence of conflicting testimony, the jury may not disregard the testimony of experts. In other words, they cannot substitute their own views on artistic merit for the evidence presented in court.

The prosecution presented no witnesses to contradict McCloud and Napier's assertion that the comic has artistic merit. Therefore, as a matter of law, the jury could not find Demon Beast Invasion: The Fallen #2 obscene. And yet that is what they did. In essence, they could not accept the notion that comics are indeed art, and they are not always intended for children. The judge failed to instruct the jury about the Miller test's national standard, and we believe that for that reason alone defense should prevail on appeal.

While there are several other issues that will be brought to appeal, the more immediate concern is the next trial, this time over Legend of the Overfiend #1. Defense counsel is working with additional witnesses, and we have high hopes for a positive outcome. Stay tuned.

The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 non-profit organization dedicated to the preservation of First Amendment rights for members of the comics community. Donations and inquiries should be directed to the Comic Book Legal Defense Fund.

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