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

Cases like this are rediculous

[mjmalone]

The government needs to back off on lifestyle issues, especially when it comes to adults. If a person is making a positive contribution to society (not in jail, has a job, pays taxes, etc.) what right does anybody else have to tell them what they can and cannot say, do, smoke, eat, drink when it does affect other people. I am hoping there is more to this case than just buying an adult magazine, but according to the article the offense took place in Texas, which makes it less surprising that such a rediculous case is even being considered. I also find it interesting that his appeal was denied because obcenity charges were a state issue. Doesn't the federal court system have a certain responsiblity to step in when a state is being accused of infringing on a constitutional right?

Re:Cases like this are rediculous

[Planesdragon]

If a person is making a positive contribution to society (not in jail, has a job, pays taxes, etc.) what right does anybody else have to tell them what they can and cannot say, do, smoke, eat, drink when it does affect other people.

They're the government. Y'see, when a group of humanoids grows to a certain point, they form a goverment that helps them all get along. There's nothing wrong with this--especially since someone who really wants to go against their local gov't can just up and move, or participate and get the law changed.

I am hoping there is more to this case than just buying an adult magazine, but according to the article the offense took place in Texas, which makes it less surprising that such a rediculous case is even being considered. I also find it interesting that his appeal was denied because obcenity charges were a state issue. Doesn't the federal court system have a certain responsiblity to step in when a state is being accused of infringing on a constitutional right?

SCOTUS has ruled on obcinitly laws before, and the federal take is "it's a local issue with local standards." In one state it may be perfectly legal for women to walk around naked on the beach; in another, a woman showing even her aeriolis can be indecent exposure.

Obscinity, dangerous speach, treason, government secrets, contractual gag orders, judicial proceedings, lies, slander, and libel are all non-protected speach. Baning them will not impugn the first amendment.

Re:Cases like this are rediculous

[Another MacHack]

Obscinity, dangerous speach, treason, government secrets, contractual gag orders, judicial proceedings, lies, slander, and libel are all non-protected speach. Baning them will not impugn the first amendment.

That's a tautology. Of course banning non-protected speech doesn't "impugn the first ammendment"; "protected" refers to first ammendment protection. It's still legitimate to question WHY so-called "obscene" material isn't deserving of protection when its production doesn't require that a crime have been comitted.

Publication is protected even if it's unpopular unless it might give someone a woody?

Re:Cases like this are rediculous

[drinkypoo]

Saying that people cannot smoke on the street is reasonable, because the street is public. Saying that people cannot smoke in a private establishment is ridiculous, because it does not belong to the people. Citing labor laws as a reason to disallow smoking in a workplace is ridiculous because people can simply choose to work for smoking or non-smoking establishments. The people will decide.

Similarly but not at all identically, outlawing the sales (or at least the display of pornographic publications at a newsstand is reasonable, because it's in the public eye, but outlawing the sales or display of pornographic publications inside of a shop is just plain stupid and clearly a violation of the first amendment. If you don't like it, don't shop there.

Re:Cases like this are rediculous

[Surak]

The community does. If 99% of the population says 1% can't do something they like that does effect the rest, even in a very minor way, that 1% loses out.

So if 99% of the population are cannibals, and they decide to eat you, part of the 1% of the population that isn't...? Is it okay that you are now lunch?

Re:Cases like this are rediculous

[maxume]

Uh, the framers wrote the constitution with a big ol' anti-federalist bug up thier collective ass. The constitution was designed to prevent the federal government from trampling all over the autonomy of individual states, not individuals. That's why the fourth amendment doesn't do much against states that decide people need a license to own a pistol. This has information for each state, and doesn't seem to be horribly biased. Most states have some sort of bill of rights built into thier charters/constitutions, so we don't notice that the constitution doesn't protect us from state laws. Of course, programs that get federal funding usually have to stick to federal law, further complicating things.

Re:Cases like this are rediculous

[Efreet]

But after the civil war the Bill of Rights was later extended to cover the states as well. I quote from the fourteenth ammendment:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Re:Cases like this are rediculous

[Delphiki]

You are correct in a legal sense, but in a moral sense I find this sort of thinking reprehensible. That the majority of people should be able to ban something because they don't like it, without any justification like that it will violate one of their basic rights (life, property, etc), is one of the worst aspects of the democratic system. Why should one group dictate the behavior of another just because there is more of them? And you can't always get away from it, so arguing that you can leave a community doesn't cut it. Tell me where in the US a same sex couple can go to have a legitimate marriage? Civil unions as in Vermont aren't even legally the same as marriages. People act like if it's not spelled out letter for letter in the constitution then you should feel lukcy if you have that particular "privilege". If you aren't killing, injuring, or stealing from anyone then you shuldn't need to ask the government or the majority for permission.

Re:Cases like this are rediculous

[nelsonal]

Up here in Helena we passed a law banning smoking in any public building, including bars. It was pretty nice to pop in to any bar and get a drink without any sort of crowd, but the bar owners hated it. I remember one place that was packed had three groups of people playing pool and two people went to the bar for a drink on a Friday at 10:30. Considering that we already had two bars that were smoke free before the law, (microbrew resturant pubs) you would think that those who didn't want to be exposed to second hand smoke would just go to one of those places. Happily somewhere along the line it was reversed by the courts or the state.

I was about ready to start a private smoking club that happened to sell drinks. Members only, but membership would cost $40 bucks and come with two cartons of your brand.

Re:Cases like this are rediculous

[MobiusKlein]

To the contrary, 'Porn' aka 'Free Love' is a way of life for some. Many a hippy commune was founded on the idea of Free Love.

The mere 'pursuit of happiness' was one of the reasons America was founded, if you recall.

rbb

Re:Cases like this are rediculous

[Abm0raz]

Waaaaaaa ... go cry about it ...

We all know that smoking is highly addictive and if second hand smoke is so prevalent, why aren't there millions of people addicted to second hand smoke? There aren't.

I'll admit, I'm a smoker. I find second hand smoke annoying as all hell. If I'm around non-smokers, I make a concious effort to smoke down wind so my smoke doesn't blow in their face, to smoke elsewhere, or not to smoke at all. But the second anyone makes an smartassed comment like "smoking kills" or one of those fake *cough cough* sounds, I make it a point to stand beside them and blow as directly in their face as I can.

I try to be a polite smoker. I try, all I ask is some co-operation in return. People smoke when they drink ... that's life. I've bummed thousands of cigs to "non-smokers" at bars. I'm not against non-smoking bars, but I think that should be the bar's option, not the gov't's. Prohibition has never worked. Not against alcohol, it's not working against drugs, and when they try it on tobacco, it won't work then, either.

-Ab

Re:Cases like this are rediculous

[carlos_benj]

Ignoring the fact that you or they could easily stand somewhere else if outside, and, if you live in a city, you're likely breathing in things far more dangerous than a bit of second hand smoke..

While the last statement is true, the first is not. There is no place I can stand outside a restaurant or public buiilding where smokers congregate around the door to get in their last few puffs before going inside and not be affected by the smoke. Cigarette smoke gives me a raging headache almost immediately. Cigars and pipes don't but the cigs always nail me. Second hand smoke drifts, it does not fall straight down nor does it rise straight up. Inside a building is even worse.

If you want to abuse your lungs that way I have no problem with it, but enacting laws to limit where the activity can take place (to protect those of us who are affected) is, as you pointed out in your other examples, legitimate. Smoke at your house and I won't come over, but don't tell me I can choose to stand somewhere else in a public place.

Re:Cases like this are rediculous

[ChaosDiscord]

Citing labor laws as a reason to disallow smoking in a workplace is ridiculous because people can simply choose to work for smoking or non-smoking establishments. The people will decide.

Similarlly, labor laws that disallow running machines in dangerous ways likely to injure and kill workers are ridiculous. People can simply choose to work for non-employee mangling establishments. The same with laws that prohibit sexually harassment my employers, those chicks can find themselves a non-ass groping establishment. Don't like my unsanitary kitchen? Let people chose between sanitary and unsanitary restaurants.

Personally, I'd rather live in a country where sometimes a community (be it a township or the entire nation) decides that certain activities cost society too much. These restrictions need to be made very carefully, the risk of overregulation is very serious. You definately need an emergency valve to protect essential freedoms (the Bill of Rights does an okay job at this).

Re:Cases like this are rediculous

[arkanes]

Thats because your logic doesn't support your conclusions.

Smoking in the workplace is physically and psychologically harming to anyone who doesn't smoke. There's no reasonable way the ability to withstand smoke (ie, not be bothered by it) can be consided a neccesary condition of working.

Certainly saying that "they can always work somewhere else" is moronic, unless you WANT someone to call you on it.

Here's a question for you: If I wanted to masturbate in your bar, would you mind? Would you throw me out? How about calling the police if I persist? Why? How is any more or less obnoxious than smoking? How about if I choose to keep a bucket of urine at my table instead of an ashtray?

Re:Cases like this are rediculous

[Zirnike]

"It stands, therefore, not as a right, but rather as a privilege awarded by the majority."

Bull. 10 seconds with google would have given you this tidbit:

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

How clear can you get? Any right not explicitly given to the government is EXPLICITLY given to the people. People like you have constantly ignored these two amendments, and in the process, slashed away at the rights given to us by our existence. Not by the government, inherent rights.

If a woman wants to express herself by getting nude and getting paid for it, it's her call, and no one else's, except in that we don't have to buy a copy of 'Janet Reno, nude!' if we don't want to.

Oh, regarding: "The decision falls to the majority. Will more people be unhappy with it than happy? Then it won't be allowed."

In case you hadn't noticed, the majority of people do not need to be protected by the majority. The Constitution is set up to make sure that minorities cannot be repressed by the Fed (and the States). A white (non-Yankee) male does not have to be protected to get a job as sheriff in the deep south. A black woman just might. The Constitution protects against the 'Tyranny of the Majority'.

Re:Cases like this are rediculous

[Kombat]

there's always someone willing to apply the logic I've applied to one situation, and apply it to another.

That's because the situations are analogous, and your position is hypocritical. Sexual harassment (note: big difference from sexual "assault" - I chose harassment because it closely parallels your second-hand smoke example) is harmful to others, as you state. However, SO IS SECONDHAND SMOKE!

Here in Ottawa, Ontario, we have a blanket smoking ban on all restaurants and bars, and I think it's great. For years, industries have been held accountable for the physical (and even mental!) well-being of their employees, with the sole exception of the food-service industry. On construction sites, employees must wear hard-hats and steel-toe boots. In hospitals, nurses must wear masks. In auto-painting shops, employees must wear ventilators. And yet, in bars, there was no requirement for employees to protect themselves from the smoke.

A woman in Ontario was recently awarded a large sum of money, because she developed terminal lung-cancer after working in a (smoke-filled) restaurant for 40 years. She never smoke in her entire life.

If a coal miner developed black lung, and the mine he worked for forbid employees to wear masks, don't you think it would be reasonable for the company to be held accountable? Or should he simply "quit and get another job?"

By the way, leave alcohol out of this, because no one ever got liver disease from "second-hand alcohol." They are two completely separate issues. I can sit next to you and drink alcohol without adversely affecting your health, but smoke, by nature, affects everyone around.

You may think smoking bans are ridiculous, but I, on the other hand, feel the lack of smoking bans is ridiculous. It is absurd for the food service industry to enjoy being the lone exception in workplace safety scrutiny. Staff at these establishments have every right to a safe work environment, just as everyone else in the country does. Anything else is hypocritical at best.

Re:Cases like this are rediculous

[acidrain69]

bullshit. Smokers are the minority. It's a proven health risk, and you are going to force it on people? Having been a smoker and quit, I can attest that once you quit, smoke becomes more offensive to you.

California has has a smoking ban for a while now, and when I visited there I was a smoker. You know how bars got around it? They have patios, and everyone masses on the patio to smoke. Inside is supposed to be smoke free. What is so bad about this? If you want to kill yourself, go do it outside where there is proper ventilation, not a closed-system AC environment.

Re:Cases like this are rediculous

[Zirnike]

No, any right not given to the Fed is given to the people through the 14th amendment.

Amendment XIV: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Sorry, I assumed you would have read any of the half dozen comments that mentioned it already. This amendment says, when you get down to it, that you can take the 'rights' bit of the constitution, change 'Federal Government' to 'State Government' and it'll still be the law of the land. The State can not have more rights within its own borders than the Fed has within ITS borders.

Re:Cases like this are rediculous

[arkanes]

Sexual harrasment is just as much an atmosphere as smoking is. If a boss wants to make the decision that all his secretaries have to be 19-21, female, attractive, and naked, how long do you think he's going to last without a suit? (Note: strippers & such aren't sued [successfully] because physical attractiveness is a characteristic of the work done. For the same reason, someone in a wheelchair couldn't sue for not being hired to do something that required mobility - say mountain rescue or something). Why is it inappropriate and illegal anywhere, even in the workplace (Note again: It's not. I can sexually harrass women all I want in private or on my own time. The worst I'd get would be a convetional harrasment suit if I didn't leave her alone when asked).

And, actually, most people DO consider the right to work a basic human right. The UN does. Most US courts interpert "pursuit of happiness" as including the right to work. Its in the interest of society for the work market to be fair.

Re:Cases like this are rediculous

[IpalindromeI]

The only reason that being in a smokey environment is "widely understood" to be an inherent part of bartending is because when smoking became a popular pasttime, and companion to drinking, it wasn't known to be unhealthy. In fact, many people believed it was good for you. Therefore it gained wide popularity and people just had to put up with it if they didn't like it. If everyone had known from the start how unhealthy it is, it would never have become as popular as it is, and it certainly wouldn't be thought of as "inherent" to bartending. I doubt you could make the case that people didn't realize from the beginning that driving 200mph, falling off of high buildings, catching and arresting criminals, or rushing into burning buildings were dangerous.

Re:Cases like this are rediculous

[Carnivorous Carrot]

> If you want to abuse your lungs that way I have
> no problem with it, but enacting laws to limit
> where the activity can take place (to protect
> those of us who are affected)

It is legitimate for a democracy to decide how much pollution of public areas (air, e.g.) is ok to pollute, e.g. cars.

However, for cigarette smoke, that should be up to the private property owner. If a restaraunt wants to have smoking sections, or smoking everywhere, that's up to them.

I find it reprehensible that various cities are flat-out banning smoking in private establishments. If you, dear person who doesn't like smoke, and has tantrums over it, take your business elsewhere.

Don't pull out a gun and demand someone stop smoking on their own property (or with the permission of the owner.)

And no, I don't smoke.

BTW, until humanity gives up on this sickening desire to whip out the dictatorial gun and stop pointing it at other people doing things they don't like, we'll never move past the animal stage.

Suggestion: link to the case!

[Anonymous Coward]

The links in the summary all lead to peripheral sites, not to anything detailing the case itself.

Re:Suggestion: link to the case!

[Catbeller]

Major media just don't care.

But you can find all the links at The Comic Book Legal Defense Fund.

Texas

[mopslik]

Since it's in Texas, will he receive the death penalty?

Am I missing something?

[GeckoFood]

The case itself is an obscenity charge for selling an adult comic to an adult undercover police officer in Dallas.

At the risk of getting myself modded down for being a little clueless... Why is selling adult materials to adults in Dallas a problem? Is adult content illegal there? Or did he violate some ordinance? If it's a local thing, this should not be a big deal at all and is way out of proportion...

(if he thought said police officer was a minor, well, then I think I can understand the issue.)

Flame away...

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."

Re:Am I missing something?

[dr_dank]

Why is selling adult materials to adults in Dallas a problem? Is adult content illegal there? Or did he violate some ordinance?

There is probably a little known ordinance against the Son of God selling smutty comics.

Re:Am I missing something?

[mckwant]

I'm not well read on this, but I think the issue is that it's an obscene COMIC, and the DA is arguing that it shouldn't be available in a comic book store. Apparently, the store in question is also across the street from a school, which, of course, shouldn't matter at all.

This is exacerbated by the fact that, as we all know, comic book stores are populated solely by eight year olds who are really only interested in the adventures of Richie Rich, and might have their fragile minds corrupted by the mere presence of such materials.

Re:Am I missing something?

[RancidBeef]

There was a woman who sold adult novelties driving through Texas (I think it was Texas). She had something like 17 dildos in her back seat (maybe they were samples or something). A cop pulled her over and noticed them. She was arrested and charged with felony obscenity!

Re: Am I missing something?

[Black Parrot]

> 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."

Ah, the Five Dildo Limit. Remember that when packing for a trip to Texas.

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."

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

Re:First amendment

[gilroy]

Blockquoth the poster:

The first amendment is not a "federal law."

Well, technically,

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article VI)

So in that sense it is a law. But of course it's not a law in the same sense as a typical bill passed by Congress... :)

Re:First amendment

[fingusernames]

In the broad sense, of course, it is "law." The federal constitution however predates the federal government, so it cannot be "federal" law. The point being, the first amendment is not merely a law. It is a portion of the "contract" among the people which authorizes and empowers the federal government to create law. The federal constitution as a whole is a grant of authority, binding upon government, not individuals. The people later agreed to extend protected "rights" as enumerated in the federal constitution to also be binding against action by the state governments. So the Supremes declared long ago.

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.

Is this a 1st amendment issue?

[GreenCrackBaby]

How does free speach come into play here?

In People -vs- Larry Flynt it was an issue because Larry was the one making the obscene stuff. This guy was charged with selling the obscene stuff...not really a speach issue, and I agree with the courts that this is probably something that is decided at a state level.

That being said, I think I'll stay far away from Texas. It's like looking back in time 100 years.

Interesting because it's from Texas

[LowellPorter]

The recent ruling by the supreme court on homosexual ruling basically nullified the state law agaisnt it. This is the Supreme Court getting involved in a state law case. This one is no different than that one and even has greater implications since it's a free speech/1st ammendment case and the other wasn't.

Re: this is normal

[Black Parrot]

> the precedent has always been that the locale of the alleged offense has the right to determine what is "patently obscene" free speech is guaranteed, but if everyone around decides that what you say is obscene you can be shut down.

IOW, there isn't really any free speech.

> I for one, believe in personal responsibility. Your right to extend your fist ends when it hits my nose

And personal responsibility suggests that you shouldn't buy naughty comic books if you don't want to see them.

This may be "normal" in the USA, but it isn't "liberty and justice for all".

Not so fast

[segment]

Going to jail is an article about someone going to jail for linking to bomb making plans, yet I see no mention of the EFF or ACLU. One thing I know personally about the ACLU is, they will not take a case unless it generates huge amounts of publicity for them which is sad, because there are cases which need an overseer, that will never get any attention because of the media whores such as ACLU.

Now don't get me wrong, I know they assist with many cases, but they're in it more or less for the publicity. As for EFF, slowly they are becoming the same way.

There is likely a bit more to the case than it seems so keep this in mind, and I doubt any smart prosecutor would lay his cards right out since it could alter his offense.

CBDLF and EFF

[Spudley]

the CBDLF donations and giving to the EFF are Good Things.

Okay. I can see how the CBDLF is relevant to this. But what possible connection does the EFF have to a case about comic books?

Curious

[phorm]

Is this just a local law, or one that's in a lot of states. Is such material OK, except in the form of comics?
I'm wondering as to the particulars of this law, as selling an X-rated comic book (which I'm assuming didn't touch the fringes of underage-looking characters or whatever) to an adult is not a crime in most areas, and certainly not here in Canada. How can the US uphold such a law, or is it just Texas?

What really gets me is that the store doesn't get busted for carrying the material, but the clerk does. The cop that pulled this bust should be ashamed of himself, railroading an unsuspecting clerk like that.

Strange...

[nebaz]

Doesn't it seem a bit strange that the Supreme Court
basically upholds the right of a state to determine what it considers "obscene" right after they overturn a Texas sodomy law due to the "right to privacy"?

Re:You missed one

[DAldredge]

When the ACLU begins to defend all of the Bill of Rights, then I will donate to them.

The first amendment does not apply here.

[Prince_Ali]

The first amendment does not apply to obscenity. I'm going to get flamed for this, but it is true. You can look it up.

First Amendment and state courts

[MillionthMonkey]

"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."

The First Amendment is not a "Federal law", nor is it a law at all. It defines rights guaranteed to citizens which cannot be abrogated by the federal government, nor the states, nor local governments.

Except in Texas. Don't mess with Texas.

Amen.

[InterruptDescriptorT]

That being said, I think I'll stay far away from Texas. It's like looking back in time 100 years.

100 is a number the figures prominently here in Texas. The temperatures always seem to be above it, while the locals' IQs average well below it.

This is probably one of the back-asswardest states in the Union and since you appear to have half a brain, I'd recommend staying the hell away from it and let it degenerate into the backwards, inbred garbage dump it is rapidly becoming.

Re: News for Nerds??

[Black Parrot]

> ok, so it's a pet issue of Hemos' but does this really merit a story on slashdot?

Jesus arrested for selling pr0n, and you don't think it's news!

youth culture killed my dog

[pjack76]

I dunno. There is certainly stuff in comic books these days that's politically incorrect. The Invisibles by Grand Morrison is about a terrorist cell that goes on offensives against the United States government; the terrorists are portrayed as the heroes, the US military as mindless zombies who can't think for themselves.

I think there are two reasons that comics seem to always be under attack. (Wasn't there a whole big thing in the 50's about censoring comics?) The first of course is that children read a lot of them. Parents are probably suprised when The Invisibles in no way resembles Superman.

The second reason is that comics tend to touch on subjects that more maintstream mediums won't. You will never see a TV version of The Invisibles on CBS. I think that's the reason there's a market for adult comic books, it's really one of few places you can go to see unconventional stories.

Should Grant Morisson be thrown in jail for writing stories about attacking the US government? IMO, no. Should he be surprised when someone wants to throw him in jail? Not really. Alas, in this day and age, if you are in the public eye at all, you need a good attorney. Probably why Mr. Morisson chose invisibility as his theme.

As Much as I Love the First Amendment...

[XaProf]

I'm going to apologize in advance for being picky.

1. The First Amendment isn't law, it's a part of the Constitution. The Constitution trumps Federal Law.
2. The first words of the First Amendment say "Congress shall make no law..." That is, the First Amendment initially only restricted Congress, not state legislatures. Then, through application of the Fourteenth Amendment, the Supreme Court (SCOTUS) said that the First Amendment would (kind of) apply to the states as well as the federal government.
3. But wait, free speech isn't that easy. Lots of states have crimes against fraud. But what is fraud? A lie. What is political speech (sometimes)? A lie. When can you tell one lie from another lie? This is where things get tricky.
4. Sidenote: this is why the First Amendment applied only to the Feds initially. The Founders thought that the to-and-fro of normal political action in the states would help preserve liberties, and so didn't prevent the states from doing a heck of a lot initially. They were more afraid of the federal government becoming tyrranical. Rhetorical question: ask yourself which is more tyrranical today -- the states or the feds?

So SCOTUS has now made a million itty-bitty divisions within the First Amendment. You can go to jail for burning a draft card, but it's ok to wear a jacket saying "Fuck the Draft."

The Supreme Court is busy. Very very busy. Don't think that they're the only ones who could have helped this guy, though. For his case to have gotten this far, it must have wound its way through a handful of courts and a dozen different judges.

The First Amendment is complicated. Don't get me wrong, I'm as much a foe of obscenity law as Larry Flynt; this post isn't about the underlying case, more about the way that it's been presented here. Want to make things better? Petition your state legislator to change the laws of your state. State legislators have a thankless job and would probably look forward to some feedback from one of their constituents.

And no, I'm not a legislator or a guy who knows one. I'm just a student.

Sheesh....

Whoa, There, Cowboy! Local Obscenity Laws == Good

[RobotRunAmok]

I followed the links, but got no information re what the local obscenity laws are in Dallas. Did the comic sold violate them? If so, then what's the issue...?

Lookit, laws re obscenity and speed limits and such are made on the state and local levels Because That Makes Sense! The people in downtown Tulsa don't want L.A.-style porn shops opening in their area, and the people in L.A. don't want to live in a Tulsa-esque climate. Fine! Great! Makes perfect sense! If the Fed comes in to determine what is "universally" obscene or not, folks in both Oklahoma and California aren't going to be happy by the compromise.

Hey, this is America, Land of Opportunity, and if I want to get rich with a chain of Car Washes, I can go for it. But if I try to open one next to your suburban golf course or grammar school, I'm going to be denied. Why? Cuz of the local zoning laws. So I go elsewhere to pursue my "opportunity." Makes sense to me, and the people with the kids in the local school. Some guy selling some explicit tentacle-sex manga is cuffed in Dallas. That makes sense too.

How refreshing that the Supreme Court is repsecting state statute on this one. I really do not want the Federal Goverment involving themselves with local lifestyle laws. There's a Big Big World West of the Beltway and East of Hollywood.

Obscenity and Free Speech

[ihummel]

Obscenity is not considered free speech as protected under the first amendment. Therefore it is left to the state and local level to decide if and how to regulate obscenity, as obscenity is judged by the local community standards.

The law, as seen on tv

[KReilly]

The law in texas has the right to ticket or arrest anyone who is not selling without a liscense of obscene material.
I know this because

A) My sister works in a porn shop (yes, we are all proud she.. then again at least she is finally working)

B) Playboy repeadetly writes about people who get taken to jail for having porno in their car...

Recently they have been cracking down on both pornography and drug associated products (EG Pipes).. Evidently terrorist do nothing but get stoned and watch porn.

I wonder...

[Lord_Slepnir]

...if its too late to let Mexico have Texas back. I hate having to say I'm from the same country as these people.

Equal Protection . . .

[Dausha]

. . . with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law.

Well, the Amendment is a Constitutional Law, not 'Federal,' but that's not my point. I thought the 14th Amendment gave equal protection, which (as I understand it, and IANALY) means that if it would be unconstitutional as a Federal Law, then it would be for a state law as well. This was the view taken to stop Texas from enforcing its Sodemy law recently.

Re:You are NOT to look upon the human body!

[SoVi3t]

We initially WERE naked. Obviously the Lord didn't create Adam and Eve, and then hand them some GAP clothes. Humans created clothing throughout history, mainly as a way of showing wealth (more money = better clothes). Anywho, this is mainly a political discussion, not a religious one. Don't recall Jesus ever payign a visit to the Lone Star State

Re:Whoa, There, Cowboy! Local Obscenity Laws == Go

[Black Parrot]

> Lookit, laws re obscenity and speed limits and such are made on the state and local levels Because That Makes Sense! The people in downtown Tulsa don't want L.A.-style porn shops opening in their area, and the people in L.A. don't want to live in a Tulsa-esque climate. Fine! Great! Makes perfect sense!

Of course, if the fine folk in Tulsa don't want that stuff they won't buy it, and the shops will fold due to lack of business.

There's a reason this stuff was being sold in Dallas, and it ain't that nobody in Dallas wants it.

> If the Fed comes in to determine what is "universally" obscene or not, folks in both Oklahoma and California aren't going to be happy by the compromise.

Of course, the Feds shouldn't be worrying themselves over what is obscene at all, universally or not. The US Constitution doesn't have any "except for obscene materials" clauses in it.

> Hey, this is America, Land of Opportunity, and if I want to get rich with a chain of Car Washes, I can go for it. But if I try to open one next to your suburban golf course or grammar school, I'm going to be denied. Why? Cuz of the local zoning laws. So I go elsewhere to pursue my "opportunity."

So if it was a zoning issue, why didn't they just close the shop instead of throwing an employee in jail?

> How refreshing that the Supreme Court is repsecting state statute on this one. I really do not want the Federal Goverment involving themselves with local lifestyle laws.

I do. We've got a sub-population in this country that's rampaging out of control, trying to get anyone who differs from them thrown in prison. You can't run a free country on that basis.

Hemos Should Get His Fact Right

[reallocate]

Hemos should at least get his facts right before he goes off on a tangent about the threat to the republic posed by getting in trouble reading dirty comic books.

The First Amendment is part of the U.S. Constitution. It isn't a state law or a federal law; it's part of the framework which gives Congress the power to legislate and the Supreme Court te power to judge.

God knows what this has to do with computing, but it is certainly indicative of the kind of audience Slashdot draws: Adults Who Read Comic Books. Now, there's something that can threaten the republic.

Why the hell isn't the Bible challenged?

[fudgefactor7]

There's rape, murder, infanticide, mass killing, cult activity, genocide, supernatural beings, and talking animals. Surely these things should not be allowed!

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.)

I couldn't agree more.

[Safety State]

Obscenity and other forms of dangerous speech (split infinitives, sentence fragments, etc.) are unprotected -- and rightfully so.

Ask someone who knows. I've been speaking and hearing speech for close to my entire life, and nothing dismays me more than a bit of speech that endangers all of humanity.

The Court's Opinion

[psiphiorg]

I don't see anybody linking to the 5th District Court of Appeals's opinion yet, so rather than relying on the biased CBLDF perspective on what the ruling means, why not read the Court's opinion and get it straight from the source? The Majority Opinion is from two of the three judges, and the Dissenting Opinion is from the other. davidh

Sorry!

[Black Parrot]

> > 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."

> Ah, the Five Dildo Limit. Remember that when packing for a trip to Texas.

Ehrm, maybe "packing" wasn't the best choice of words in that context.

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.

It is federal law, and other misconceptions

[DirtyCowboy]

I'm posting this as a general reply so I don't have to reply to each person who has said "The First Amendment isn't federl law!!!" The Constitution is a "Federal law," as are it's Amendments. It just happens to be the supreme law of the land, meaning that it is superior to all other law (statutes, regulations, common law, etc.).

While I certainly feel for Mr. Castillo, the Supreme Court has long ruled that obscenity is not protected by the First Amendment. See Miller v. California, 413 U.S. 15 (1973). This does not apply to speech that only rises to the level of "indecent." Whether something is obscene or not is determined based on local community standards. While I personally think that obscenity should be protected by the First Amendment (it says "Congress shall make no law..."), that's the law as it stands now ( and yes, case law is law too).

Also, I AM a lawyer.

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.

Re:Only in Texas? Not true....

[RancidBeef]

Yep. I'm in Alabama too and I remember this law (it also outlawed nude dancing, which killed one of my new hobbies - watching the dancing, not doing it myself :-) I think the law was tossed out, but not for the reasons it should have been.

The AG (Bill Pryor - who is currently a Bush nominee for a federal judgeship) made that ridiculous "no constitutional right" statement even though Alabama has the following beautiful section:

SECTION 35

Objective of government.

That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.

If obtaining sex toys isn't "enjoyment of life, liberty, and property," I don't know what is!

'Priveleged ' to be Free?

[LittleGuy]

So I put it to you that porn is not for either of these purposes {to mostly to allow the populace to criticize the government and other figures with power as a means of exacting political change (and) to allow one to teach one's beliefs and way of life to other people.}; it is merely for pleasure. It stands, therefore, not as a right, but rather as a privelege awarded by the majority.

So, if it feels good, it's a "privelege"? Shouldn't this be considered under the "scope of privacy" between two consentual adults.

Conversely, if it make you 'feel bad', it's protected? How does one measure 'bad' -- by the majority or by the individual?

The decision falls to the majority. Will more people be unhappy with it than happy? Then it won't be allowed.

We're at break-neck speed down that slope as ideas and concepts are being reclassified "priveleges" rather than rights, which imply that we are nothing more than border-line disobedient kids who need discipline for 'bad thoughts' rather than as adults in a free society.

Furthermore, there is a fallacy in this even for the 'free speech' parameters. Even in mild discourse, there will be disagreements which will make people happy and unhappy. The 1st Amendment specifically protects the speech (especially the political speech) that makes the majority unhappy.

I disagree.

[Irvu]

Free speech, and the accomptying freedoms of religion are not soley about politics, and pornography is not apolitical. Sex, how we have it (consider the Mormons), if we have it (some early American communities banned it outright), what we think about it, and who we have it forms a foundation of our "way of life" as you put it.

Consider the issue of women's liberation. in the 1800's, even in the 1950's the expectation was that women were meant to stay in the home and have children because that was their lot in life. Sex, issues such as homosexuality, etc were not discussed. As a result the nature of public life, and of politics was different.

If you want a more palpable idea consider the issue of homosexuality. Until recently it was illegal in Texas (and still is in many other areas). Banning homosexuality and the discussion of it allows for homosexuals to be denied access to the public sphere (unless they hide who they are). That in turn changes politics. Even in the early 1980's Man conservatives were able to stymie research into AIDS and public health initiatives dealing with it by arguing that "it was a homosexual disease" and therefore didn't affect "the rest" of us. It was only through the gorwing realization that heterosexuals were contracting it in increasing numbers combined with a growing homosexual lobby that brought it to the forefront.

To take a non-sex issue, consider the muslim religion. For many muslims wearing beards and turbans is part of their religion or at least their culture. Should we ban those, as well as the public call to prayer because they remind many people (uncomfortably) of 9/11? After all the freedom of religion still stands, we are merely banning something that gives them "pleasure".

I say no, the right to dress as such and walk freely without hiding who you are is a necessary part of this country. It is also very very political. To deny people the right to dress as they want for fear of offending others is to deny them the right (again as with homosexuals) to access the public (and thus political) sphere on their own terms. To do so would skew the public debate in this country by making it possible for one group to oust another or at least limit their public presence (and thus influence) on the most subjective of grounds, that of comfort.

With regards to your comments about children. We have laws to protect them. The constitutional definition of obscenity is very narrow and should remain that way. In the case of Jesus, he sold the materials to an adult. If they wound up in the hands of a child then the adult who bought them would have been the one giving them. Moreover the supreme court has held (correctly in my view) that the function of laws to protect children cannot be to force adults to act like them. If we have the right to ban things that may reach children then adults can never yhave a public conversation about adult issues such as sex, AIDS, WAR, and so on.

There are a great deal of things that make me uncomfortable including LEgend of the Overfiend (the comic book that Jesus was arrested for selling) but I am willing to give up my ability to ban them in echange for the agreement that they not ban me.

As easy as the nee-jerk answer feels I believe that it is the wrong one.

Re:Oh my god

[Catbeller]

"shut the hell up!"

No, Bill O'Reilly Brownshirt. We won't shut up. And you can't shut off our microphone. Or threaten us with violence if we don't get out.

And Bush is a bigger threat than Al Qaeda. He invaded the wrong two countries, turned the entire Islamic world against us, humiliated and alienated everyone else, and let all the bad guys get away. He's deactivated at least four amendments to the Bill of Rights. He's established that he is not subject to any court. He can make any of us disappear at any time. We are not permitted to protest in his holy presence. He and his people are looting the Treasury. He will make destitute millions of people when the U.S. won't have the money to pay Social Security. He is the worst, most clueless, most arrogant president we have ever had. And he wasn't even elected.

All Al Qaeda can do is kill our bodies. Bush is killing the soul of America.

populist thinking

[dh003i]

Might does not make morally right. Nor does numbers. Just a couple hundred years ago, it could be argued that the majority of the population thought that African Americans didn't deserve rights. That makes it a popular position, not a right one.

Selling pornography doesn't violate anyone's rights. In fact, you can't make a reasonable case for it harming anyone, since no-one has to buy it or look at it. That's a different matter from walking down a public street naked, something that it's unavoidable to look at.

Of course, there's also this silly litle thing called the US Constitution and Amerndment's ,which in all cases supercede any other laws, and nullify those laws which are in conflict. It's pretty clear that adult comic books, and other x-rated material, is protected under the First Amendment.

Your populist thinking is disturbing, because it goes against the very principles that we think of when we talk about human rights, one of which is freedom of speech. According to you, if a community felt like it, they would be right in forcing a husband and wife to have sex in a specified way, or in forbidding sex on Sundays, or at a specific time of the day.

It is clear that you have little or no respect for human rights, if you think that we are justified in violating them every time we can convince a majority of the people that that's "ok".

It's also nice to know that the cops are making good use of our tax dollars by prosecuting victimless crimes, such as pornography, prostitution, and drug-use, instead of going after real criminals, like rapists, murderers, and child-molesters.