Jesus Castillo, Supreme Court, And Free Speech

I've been following the Jesus Castillo case for a while. The case itself is an obscenity charge for selling an adult comic to an adult undercover police officer in Dallas. Recently, the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law. There's also an interview with the head of the Comic Book Legal Defense Fund, and some good ruminations from Neil Gaiman on the subject. Bad precedents for free speech - the CBDLF donations and giving to the EFF are Good Things.

Comments

First amendment

[fingusernames]

The first amendment is not a "federal law." It is a component of the federal constitution which restricts federal power, and through the 14th amendment, it is considered "incorporated" to restrict state power as well. This has been well-settled since shortly after the Civil War.

Larry

Obscenity rulings

[Anixamander]

the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law

Free speech is a federal issue, however the USSC decided in 1973 that the determination of obscentiy is a test in part based on community standards.
The court does not seem to be ignoring this issue as much as they are referring back to their previous ruling.

Re:Am I missing something?

[Anonymous Coward]

The Texas Penal Code isn't generally thought of as a laugh-out-loud read, but Section 43.23 is an exception: "A person commits an offense if he ... possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices ... is presumed to possess them with intent to promote the same."

Nobody knows why the Court refused to hear case.

[Glassbear]

Recently, the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law.

But the Supreme Court didn't actually say that, or anything of the kind. Read the linked article. Castillo thinks the Supreme Court refused to hear his case because Castillo thinks the Court thinks it's a question for the states. But the Court itself didn't say one word about why it refused to hear Castillo's case, so we have no way to know whether his belief about their reasons is an accurate belief or not. The Court gets asked to hear thousands of cases every year and actually hears fewer than a hundred of them. The Court generally doesn't offer any explanation of why it takes, or fails to take, any particular case -- and its order denying Castillo's petition says nothing about why they decided not to hear it.

Community Standards

[Blue Stone]

It's a shame that Judge's rulings and punishments aren't also subject to compliance with "community standards:"

In 1994, underground cartoonist Mike Diana was thrown in jail for 4 days without bail on obscenity charges, for publishing, advertising, and selling his zine BOILED ANGEL. Mike was on probation for 3 years, terms of which included fines of $3000, no contact with children under 18 (or within 10 feet of a minor), 1280 hours of community service, maintain full time employment, and at his expense, see a psychiatrist and take journalism courses at his own expense; AND no drawing for his own personal use... his home was subject to unannounced searches by local police to make sure he was complying. Mike Diana is now serving another 2 years of probation, including $2000 in fines, and the same probationary terms.

On June 4, 1996, a ruling issued by Largo, Florida, Circuit Judge Douglas Baird declared Mike Diana's zines, Boiled Angel #7 and #ATE as obscene. The judge emphasized throughout Mike's ruling that he personally found Diana's comics "patently offensive." Referring to Diana as "the appellant," and stated, "The evident goal of the appellant's publication is to portray shocking and graphic pictures of sexual conduct so it will be noticed. If the message is about victimization and that horrible things are happening in our society, as the appellant alleges, the appellant SHOULD HAVE created a vehicle to send his message that was not obscene."

From here.

The judgement seems to me to be entirely obsecene. I mean, "AND no drawing for his own personal use... his home was subject to unannounced searches by local police to make sure he was complying."

Sounds more like something people experienced during the Chinese Revolution than SHOUL BE the case in modern America (or any civilized society.)

Re:Am I missing something?

[DAldredge]

From another site:

I apologize in advance to all those readers who have ties to the Lone Star State, but only in Texas would a woman get busted for possession of sex toys. Not possession of narcotics, or an open container of alcohol or even an illegal alien. Instead, Kathleen Elizabeth "Kathy" Grubbs of Longview, Texas was charged with obscenity for intent to promote "objects defined in a dictionary as having the shape and often the appearance of the male genitalia, used in sexual stimulation."

According to a Nov. 21 article in the Longview News-Journal, Grubbs, having been pulled over for driving erratically, had 17 "obscene materials and obscene devices" in her car, a felony under Texas state law. The law states that anyone possessing more than six "obscene" items at a time has intent to promote said items. This is apparently a big no-no in Texas, where there have been raids on various adult bookstores in recent months.

Grubbs, a distributor for Slumber Parties Inc., called the charges "kind of ridiculous."

Some Background

[_xeno_]

The links Hemos gave did little to establish background for the "Jesus Castillo case" so I'll try and do it based on some brief research and what I found through Google.

Basically, during the month September 1999, an undercover police officer purchased a collection of adult comics from a store called "Keith's Comics" in Dallas. He then looked through them to try and determine comics that would be considered obscene by community standards. (This is a normal part of vice operations anywhere.)

The comics chosen where Demon Beast Invasion: The Fallen and Legend of the Overfiend (links to Google searches). At trial the second one was dropped and only "Demon Beast Invasion" was considered as being an obscene book sold to the officer. (Funny quote from the Dallas Observer article: "There was no test here to show the clerk knew what was in there. You can't judge a book by its cover." (Said by Castillo's attorney, working for the CBLDF.) Look at the Demon Beast Invasion cover. I think you probably can judge that book by its cover. Just look at the Google links above. Enough editorializing...)

The defense basically argued that the books were not legally obscene because they did not "taken as a whole, lacks any serious literary, artistic, political or scientific value." Scott McCloud (OT: one of my father's childhood friends was his older brother) testified about the artistic values, and Susan Napier, an associate professor in UT-Austin's Department of Asian Studies, testified about the cultural value in relation to Japanese culture.

Castillo was found guilty, and both appeals in the Texas legal system failed to overturn the verdict. The Supreme Court was the last resort, and they have declined the case. He has already paid his $4000 fine and began his 180-day probation.

Only in Texas? Not true....

[DesScorp]

Here in Alabama, vibrators were (and maybe still are) illegal. The attorney general ruled that "women do not have a constitutional right to pleasure inducing devices".

It ain't just Texas.