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Tuesday, November 5, 2002 03:28 p.m.

In Texas, comic-books can land you in jail!

Of course, we're not talking about a standard American superhero story (though that's what the store mostly sold) - the book he sold to the cop was a Japanese manga with the usual lashings of sex and violence [2], But the Texas obscenity law he violated was not much concerned with the violence (surprise, surprise!).

Some worrying points emerge from the majority opinion of the (Texas) Fifth District Court of Appeals [2]:

1. Most of Castillo's grounds for appeal related to findings of fact: but, in Texas as elsewhere in the world where the legal system is based on the English one, a jury verdict can only be overturned on a question of fact if (to paraphrase!) only a crazy person would have decided as the jurors did. It's a very tough test, and no surprise that Castillo failed on all points under this heading.

2. Naturally, he appealed on (US) First Amendment grounds, too. In considering this constitutional question, the appeal court judges don't rely on the jury, but make their own findings of facts. However, in a rather perfunctory analysis, the majority in Castillo decided that the book was obscene under the Miller test and therefore outside 1st Amendment protection.

   A key part of the Miller test is whether the book (in this case) as a whole lacks artistic merit (merit = constitutional salvation!)

   Clearly, in a case like this, the defendant leads expert evidence of the artistic merit of the supposedly obscene item. Castillo had two witnesses, a comic-book writer and an academic - the prosecution relied on the vice cop's judgement as a connoisseur.

   The jury obviously went with the cop, rather than with Castillo's witnesses. And the appeal court, in making its own, constitutional, assessment, did so too - stating baldly that the book in question lacked artistic merit, without further explanation [3].

3. The fact that (in common with a lot of such stores, I believe) Castillo's sold mostly material that was clearly not obscene actually seemed to count against him. (Not helped by the proximity of a school.)

4. Why was Castillo prosecuted, and not the other adult stores in the neighbourhood? (After all, when you think of porn, it's still and moving pictures of real people in sexual situations that naturally come to mind.)

   I hypothesise that, to the Vice Squad, their stuff was regular porn; and his viewed as somehow subversive and un-American. Plus the fact children could and did browse in Castillo's store (though not in the section containing the adult material), and familiarise themselves with the comic-book world - thus easing their path to delinquency and worse!

   Clearly the police and prosecutorial authorities in Dallas keep statistics about obscenity prosecutions - I'd be interested to know how many they'd brought in the couple of years up to Castillo's arrest.

Since the test cases of the 50s and 60s that shifted the obscenity law to the current, Miller, standard, there has, I think, been a general tendency to assume that novels, drawings, paintings and other works mirroring high art (in form, if not in content) were immune from the obscenity laws. Only commercial porn - badly shot and lit, no story, and the production values of a spent match - was ripe for the Vice Squad, surely?

The Castillo case is a timely reminder to the contrary.

There is talk of seeking a review of the conviction by the US Supreme Court. I'm not clear on what grounds: in particular, the majority Fifth Circuit opinion doesn't indicate a conflict between different states or different Federal Circuit Courts in the application of the Miller test. Having glanced at this, rather promising-looking, idiot's guide to petitioning the Supreme Court, I can't see Castillo's case getting picked for hearing in a million years.

But, then, he's in enough trouble without taking advice from me [4].

1. Located on Mockingbird Lane!

2. The minority opinion is here.

3. Including one scene in which a demon, transformed into a tree, penetrated a female with its roots!.

4. The court also dealt with another of the Miller tests: a work gets 1st Amendment protection if it is not patently offensive:

   The first three pages contain a series of very graphic drawings of women engaging in oral sex and drawings prominently displaying the female genitals....Over the next several pages, there are also drawings of a man and woman engaging in sexual intercourse and oral sex, and, again, the genitals are prominently displayed in a state of stimulation and arousal...

   And the difference between that and all the regular (unprosecuted?) porn in the neighbourhood?

   Assuming all of the books admitted were comparable to the comic book at issue, the fact these books were available does not mean they were not likewise obscene; it could suggest that other persons are engaged in similar activity.

   They don't say! As Major Renault exclaims in Rick's bar (in Casablanca),

   I'm shocked to find that gambling is going on here...

5. Except that, at least his jail term has been suspended.