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December 13, 2000Second Charge Against Texas Retailer Dismissed
The two comics in question, "Demon Beast Invasion: The Fallen" #2 and "Legend of the Overfiend" #1, are both adaptations of Japan's hugely popular "Legend of the Overfiend" series of anime films. Like the films, the comics are clearly intended for an adult audience, and are labeled "absolutely not for children" on the covers. At this comic shop, they were racked in an "18 and Over" section that also included "Sin City," "Preacher," "Spawn," and all of DC's "Vertigo" titles. No one alleged that these comics were displayed to children, or that the manager was negligent in verifying the age of the undercover police officer and PTA member who purchased them. Instead, the prosecutors claimed that the material is obscene. In order to be judged obscene, a work as a whole must appeal to the prurient interest and lack any artistic, literary, or scientific value. Obscenity is not protected by the First Amendment, and it is illegal for adults to create, promote, sell, or purchase obscene material. These two charges -- both of which carry two- year jail sentences and $4,000 fines -- were to be tried separately. "We're not talking about a prudish city here," said CBLDF executive director CHRIS OARR. "You can't drive two miles without passing an adult bookstore. But a local PTA member was so shocked by what he saw in the adult section of this comic shop that he called his city councilwoman, who called the district attorney, who called the police. And when the DA's office was not quick to act, the councilwoman applied more pressure. Thanks to her, the clerk was arrested in his store on new comics day." The first charge was tried before a jury in September. The CBLDF hired one of the leading legal teams in Dallas. For the trial, the Fund also brought in SCOTT McCLOUD, author of "Understanding Comics," to testify as an expert on the medium. DR. SUSAN NAPIER, a professor from the University of Texas, also gave expert testimony on anime and Japanese pop culture. These witnesses demonstrated that not only were these comics well within contemporary community standards, but that they also had serious artistic value. Ignoring this expert testimony, the jury was quick to return a guilty verdict and convict the store manager of promoting obscenity. The CBLDF legal team immediately filed its intention to appeal this verdict on the first charge. 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. 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 this national standard, and for that reason alone the defense should prevail on appeal. "That conviction was still only for the first charge," explained Oarr. "In preparing for the trial for the second charge, we redoubled our efforts. This time, we subpoenaed information from the offices of the mayor, the city council, and the DA. We were ready to prove that this entire case was politically motivated. And suddenly the DA dropped the second charge. Sometimes that's what it takes." "This is just the sort of case the CBLDF was founded to deal with," said CBLDF president and founder DENIS KITCHEN. "Thanks to the support of comics fans and professionals across the country, the CBLDF was able to act fast and commit thousands of dollars to the defense of this retailer's rights. It's a significant victory that Texas has backed down on the second charge, and we have high hopes that reason will prevail at the appeal."
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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. For additional information, call 413-268-7776 or e-mail the CBLDF staff. 271 Madison Avenue, Suite 1400 Web design and site maintained by Eric Griffith / Squished Frog Productions. |
