Silly Clerk, Comix are for Kids!
August 11, 2003 9:14 AM   Subscribe

Supreme Court Denies Castillo Appeal. Castillo was charged with two counts of obscenity for selling adult comic books to adults. The State prosecutor did not offer contradictory testimony, but secured a guilty verdict with a closing argument stating, “I don’t care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. … We’re here to get this off the shelf.” Castillo was found guilty and sentenced to 180 days in jail, a year probation, and a $4,000 fine.
posted by jopreacher (38 comments total)

I can't believe I never even heard about this case. The Court's decision to not review this is, well, obscene.
posted by Outlawyr at 9:27 AM on August 11, 2003

This seems in direct opposition to previous SCOTUS rulings; the notion that pornography/obscenity cannot be defined and that adult materials, therefore, constitute protected speech.

Perhaps some legal scholars can better explicate this.

But as a student of sequential art, I find the implied notion that comic books are an exclusive forum for children to be positively irrational. I'll spare the usual list of comics-as-literature books, as I believe that's been discussed sufficiently here before.

Devils advocate: Aren't there numerous state laws that prohibit the sale of adult materials within a certain radius of school grounds? Perhaps this is how and why he was sentenced. Indeed, were the store in question not directly across the street from an elementary school, it's doubtful that there'd have been a complaint in the first place.
posted by aladfar at 9:33 AM on August 11, 2003

I read about this a few days back. To start, the very case is ridiculous. I somewhat understand the reason the SC didn't take up the case (criminal cases are rare) but I think the issue is that there shouldn't have even been a trial, ruling for OR against the comic seller. There simply wasn't a crime.

What makes this so offensive is that the State Prosecutor essentially flat-out declared in court that the defendant was charged for doing something that was only a crime because the State Prosecutor said so. His argument, equally along the grounds that he thinks something is bad, will be (hopefully) at the very least enough to prevent him from ever being considered for higher office. In no realm of legality outside of this guy's jurisdiction's personal moral codes would this charge be considered credible.
posted by XQUZYPHYR at 9:33 AM on August 11, 2003

Excuse me. Has this guy been in a comic book store in the last ten years? To say that "We all know comic books are for kids" is like saying , oh, i don't know, "All non-christians belong to cults" or "Only gay men get AIDS."

Just because some people beleive it doesn't make it true.

I think you'd have a hard time finding child-oriented comic books these days.
posted by ilsa at 9:38 AM on August 11, 2003

This seems in direct opposition to previous SCOTUS rulings

Well, this isn't actually a SCOTUS ruling. Instead, the Court just declined to hear the appeal, which is a much different thing. No precedent has been created -- one could not argue that the Court necessarily agreed with the verdict. The Court gets thousands of applications every year, but only hears a very small percentage of cases. And despite what Outlawyr says, I don't think the Court's refusal to hear this case is necessarily outrageous. Lots of cases present interesting issues, and the justices have to choose which cases present the most important issues in a wide variety of subject matters.

All that said, I think this is a ridiculous verdict, and hopefully just an anomaly.
posted by pardonyou? at 9:41 AM on August 11, 2003

In light of what lisa noted... it would be interesting to see if the CBLDF would try to get a demographic survey of the average age of comic book readers and purchasers... considering how the prosecutor made a claim that comics are for kids as part of his legal testimony, could one suggest that providing statistical proof of it being comletely fabricated and unresearched merit a case to charge him with perjury?
posted by XQUZYPHYR at 9:43 AM on August 11, 2003

What ilsa said. Do they even make comics for kids anymore? When I was a little nipper (in the 60s) it was true that comics were mostly geared towards kids. There were lots of titles, mostly from Harvey, aimed at the under 10 set and then you graduated to D.C. and Marvel and the subject matter and dialog started to get a little more sophisticated. I wouldn't know where to find kids comics these days. Do they still exist?
posted by reidfleming at 9:53 AM on August 11, 2003

Neil Gaiman is on the board of CBLDF and took this defeat pretty hard (via his excellent journal). This ruling is stupid, stupid, stupid. Good first post, jopreacher!
posted by widdershins at 9:54 AM on August 11, 2003

I think you'd have a hard time finding child-oriented comic books these days. - I'll second that.

From "Chasing Amy"-
Archie, alright! Archie and the
Riverdale gang were a pure and fun-
lovin' bunch. You can't find
dysfunction in those comics, because
they were just flat out wholesome.

Archie and Jughead were lovers.
(sips his drink)

Shut the fuck up.

It's true. Archie was the bitch and
Jughead was the butch - that's why
Jughead wears that crown-looking hat
all the time: he the king, of queen
Archie's world.

Man, I feel a hate-crime coming on
posted by jopreacher at 9:55 AM on August 11, 2003

considering how the prosecutor made a claim that comics are for kids as part of his legal testimony, could one suggest that providing statistical proof of it being comletely fabricated and unresearched merit a case to charge him with perjury?

Prosecutors don't testify.

You have to testify to commit perjury.
posted by probablysteve at 10:10 AM on August 11, 2003

I did my honours research project (or thesis) on this very subject 10 years ago in Journalism School. The Toronto police had busted a comic book store and siezed all of their inventory. While the police swore up an down that it had nothing to do with the fact comic books were traditionally a children's medium, the books that were busted contained material that could be found in almost any sex shop and the charges had stemmed from complaints by adults who were shocked to find very adult themes in some of the titles. Ironically, at the time, many of the defenders of the comic book shops pointed to more liberal publishing laws in the US as the way Canada should go.
posted by Officeslacker at 10:11 AM on August 11, 2003

Pardonyou, the prosecutor essentially told the jury to ignore the evidence. Which he'd pretty much have to do to get a conviction based on these facts. Yes, the Court can only hear so many cases. I would have made this one of them, since the decision encourages a total abandonment of prosecutorial restraint and a contempt for the rule of law and established courtroom rules and procedure. The frosting on the cake would be the first amendment issues.
posted by Outlawyr at 10:15 AM on August 11, 2003

See also the Mike Diana case in Florida a few years ago, where the judge forbid the artist from drawing anything during his parole.

It sorta annoys me that this case isn't better known. Like whenever libraries do a "banned book" exhibition, the just include books that were challenged in school libraries (Catcher in the Rye and stuff) and not any books that were involved in actual legal prosecutions.
posted by bobo123 at 10:24 AM on August 11, 2003

Worst. Ruling. Ever.
posted by eddydamascene at 10:48 AM on August 11, 2003

Remember folks the three most important rules for any retail establishment: Location, Location, Location.
posted by woil at 11:31 AM on August 11, 2003

First off, that second link has nothing to do with the comic book case. That's a different person than the Jesus in Texas. Both names are fairly common, but it's not the same person, or case.

That being said, those of us in Texas are all pretty astounded. This area is fairly well known for it's puritanical fussbudgets who insist that everyone live up to their "standards" of decency...but rarely do they win in court.

Those who "know what's best for us" will continue to slowly but surely erode the freedoms and liberties that we have all taken for granted for so long.

Please, if you have spare cash, donations to the CBLDF have kept a lot of people from the thumbscrews of censorship...or buy some cool original art and books and whatnot from their store. If you've got spare time, start writing letters about this to the papers, work against the election of the DA if you're local, bring this case to the attention of the national media if you have the power.

Someone is this country is going to jail for selling a book! This cannot be allowed to slip under the radar.
posted by dejah420 at 11:34 AM on August 11, 2003

Instead of just discussing this, we should do something about it. But what?
posted by cell divide at 11:38 AM on August 11, 2003

I'm confused. Is the second link related? Is it the same Jesus Castilla? Because that case seems to be about some 35 year old molesting a fourteen year old girl?
posted by BigPicnic at 11:41 AM on August 11, 2003

The first amendment does not protect obscenity. A work is obscene under Miller if:

(1) the proscribed material depicts or describes sexual conduct in a patently offensive way,
(2) the conduct is specifically described in the law, and
(3) the work, taken as a whole, lacks serious value and appeals to a prurient interest in sex.

Most state and local governments have laws against selling obscene materials. They just aren't usually enforced due to lack of resources. So, it's really just a quesiton of whether the comics really are obscene, a question that can't be answered without actually seeing the comics.

As for the comments made by the prosecuter, they do seem inappropriate. But he was probably trying (ineptly) to suggest to the jury that they make a sort of "gut" judgment about the comics. That's not totally out of line with the law, since the judgment as to whether a work is obscene is supposed to be informed by "community standards."
posted by boltman at 11:53 AM on August 11, 2003

How can you determine that a work does or does not meet the Miller test if you ignore the evidence, considering that the evidence includes the comic book itself.
posted by Outlawyr at 12:25 PM on August 11, 2003

By the way, for those interested, here is the basis for appeal, the appellate court's summary of facts, and the statute he was charged with violating (sorry for the long post):

A jury convicted Jesus A. Castillo, Jr. of misdemeanor obscenity for selling a sexually explicit comic book to an undercover Dallas police officer. In eight points of error, appellant complains (1) the evidence is legally and factually insufficient to support his conviction, (2) the comic book is not "constitutionally obscene," (3) the trial court erred in admitting certain evidence, and (4) he was denied his due process rights by the court reporter's failure to record the punishment hearing. For the reasons set out below, we overrule all points of error and affirm the trial court's judgment.
. . .

Appellant was manager at Keith's Comics, a bookstore located on Mockingbird Lane in a neighborhood of residences, businesses, and an elementary school. Responding to a citizen complaint, Craig Reynerson, an undercover detective with the vice squad of the Dallas Police Department, went to Keith's Comics "to see if there was any obscenity being sold in the store." . . . About three shelves in the back of the store, however, contained violent and sexually explicit comic books. Although this area was not separated by a doorway, a sign was displayed at the entrance stating, "No One Under 18 Allowed Past This Point." From this area Reynerson selected a comic book, "Demon Beast Invasion, The Fallen." Reynerson made this selection because the front cover depicted what "appeared to be a nude female" and contained a warning label, "Absolutely Not For Children." According to Reynerson, all the comic books with that label contained sexually explicit depictions.
Reynerson took the comic book to the counter, handed it to appellant with the front cover showing, and paid for it. Appellant placed the comic book in a bag, and Reynerson left. He took the comic book to his office and reviewed it. . . .Reynerson described one scene in which a demon, transformed into a tree, penetrated a female with its roots.
. . .

A person commits an offense if, knowing its content and character, he promotes or possesses with intent to promote any obscene material or obscene device. TEX. PEN. CODE ANN. § 43.23 (c)(1) (Vernon 1994). HN4Obscene means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genitals; and

(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.

TEX. PEN. CODE ANN. § 43.21(a)(1) (Vernon 1994).
posted by Outlawyr at 1:19 PM on August 11, 2003

That section of the Texas penal code tends to hinge on the meaning of the word "offensive", which is obviously a very individual thing.
posted by beth at 1:52 PM on August 11, 2003

thats unreal. I would hope nothing like this would ever happen in america.

huh? oh.
posted by mcsweetie at 2:01 PM on August 11, 2003

Since their is no justice here, I propose a cartoon-terrorist cell, where we go about dropping large anvils and grand-pianos on stupid DoJ officials (they have to supply their own halo of tweeting birds/stars.)

Who's with me?
posted by Blue Stone at 2:23 PM on August 11, 2003

Blue Stone:

I bet you could get the Acme Company in on that action.
posted by ilsa at 2:25 PM on August 11, 2003

Sorry about the second link. DOH! I'll do better on my second post. Promise.
posted by jopreacher at 2:32 PM on August 11, 2003

What shocks me after reading this interview is that Castillo was not charged for owning the store, but because he was the clerk who sold the comic to the undercover cop.
posted by futureproof at 2:37 PM on August 11, 2003

That section of the Texas penal code tends to hinge on the meaning of the word "offensive", which is obviously a very individual thing.

To be fair, the Texas statute simply tries to codify the holding in the Miller case, linked by boltman above. The problem is with the U.S. Supreme Court's attempt to define "obscenity," not with the statute. Of course, we might have been just as well off with Justice Potter Stewart's definition of obscenity: "I know it when I see it."
posted by pardonyou? at 2:38 PM on August 11, 2003

There is no such thing as "patently offensive."
posted by rushmc at 2:38 PM on August 11, 2003

sorry to just glance by and throw in my two cents but to sadly quote mr. seven profane words: "screw the kids, they get enough attention already." let 'em sneak comics like booze, smokes and porn; it won't stop 'em. To quote another comic and mother: "if they are old enough to understand it, they are old enough to have it." if my parents cared at all what i was doing before and after puberty... well i wouldn't have learned anything, since i learned everything i know from books, comic and otherwise, and empirical knowledge of course...
(please ignore me as usual)
posted by ethylene at 3:13 PM on August 11, 2003

(who said that?)
posted by dash_slot- at 4:23 PM on August 11, 2003

So, remind me again...what does America stand for again? /snark
posted by dash_slot- at 4:24 PM on August 11, 2003

If there were such a thing as "patently offensiv", then some RIAA/MPAA organization would be out there trying to protect the patent...

dash: I believe Mr. Sevenwords is George Carlin.
I don't know what America stands for... I'm not sure it even stands anymore... more like bends over.

And please don't ignore ethylene; ignore me instead (I'll even get behind the curtain if you want)
posted by wendell at 6:21 PM on August 11, 2003

Demon Beast Invasion cover. ooh, and look DVDs!
posted by mikhail at 6:39 PM on August 11, 2003

So spammers can send e-mails showing a real, live naked woman preparing to fellate a real living horse, and that's free commerce which cannot be legitimately restricted, but a comic shop selling a book containing a drawing of a woman getting schtupped by a demonic tree is illegal. Logic is turned on its head.

Though it wasn't an element of the appeal, I'd love to see the judge's instructions to the jury in the original trial.
posted by Dreama at 9:19 PM on August 11, 2003

How can you determine that a work does or does not meet the Miller test if you ignore the evidence, considering that the evidence includes the comic book itself.

Clearly you can't. I'm just being optimistic and assuming that the prosecutor was suggesting that the jury ignore otherevidence and just focus on nature of the comic books themselves. That's still inappropriate, but less so than if the prosecutor was just saying, "convict him because I say so."

Dreama: I don't think anyone whould argue that your hypothetical spam is obscene under Miller, and probably illegal under the law of both the spammer and the recepient. The problem is just that the states don't generally want to spend the law enforcement resources to go after spammers.
posted by boltman at 10:13 AM on August 12, 2003

Um, that should read not obscene under Miller
posted by boltman at 10:15 AM on August 12, 2003

Boltman, two points: a.) it's not hypothetical, it was in my inbox late last week. b.) you're right, it's an enforcement thing.

I'd still love to see the charge to the jury.
posted by Dreama at 4:55 PM on August 12, 2003

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