Warning- This article includes violent imagery.
Many people misunderstand what the right to free speech means. It means that government is not allowed to interfere with legal speech. Civilians can censor all they want to. The case of Mike Diana is one of government censorship of free speech through law enforcement. The reason that the Mike Diana case is significant is that he is the first U.S. comic book artist convicted of obscenity. His story is told in the new documentary, Boiled Angels: The Trial of Mike Diana. It is being screened for the first time this weekend in New York. It was produced by Anthony Sneed and Mike Hunchback, and directed by Frank Henenlotter, perhaps best known for his softcore movie Frankenhooker.
The story is a strange one. Essentially, Florida Assistant State’s Attorney Stuart Baggish got a look at the comic and decided that it was obscene. It did cover violent and taboo topics. Diana was then charged with several counts of obscenity. With the help of the Comic Book Legal Defense Fund, he and fought a long and hard legal battle against the power of the State, which he lost. It was 1994, and Diana was 24 years old.
There is no question that his comic pushes the boundaries. He created it with the intent of creating something outrageous, unsettling, and twisted. Diana himself called it “The most offensive zine ever made.” It includes imagery of subjects like incest, cannibalism, and child torture. The real question is whether we should throw people in prison for creating art, no matter how much it might offend our sensibilities. The First Amendment is not there to protect paintings of bowls of fruit and books about cute puppies. It is there to protect the more challenging forms of expression.
The offensive art of Mike Diana – this was found obscene and illegal and is not protected speech
At first authorities thought he was the Gainsville, Florida serial killer based on the fact that he drew a violent comic. He was not. Baggish then decided that Diana should go to prison for what he drew. They argued that true, he turned out not to be a serial killer, but didn’t his art suggest that some day he might turn into a serial killer? These violent murders were the inspiration for the film Scream, but Florida has yet to argue that film makers who make violent films will probably turn into serial killers.
This might seem like a ridiculous argument, but it is true that many serial killers are also artists. This includes Andre Crawford, Hadden Clark, Richard Ramirez, Robert Bard, John Wayne Gacy, Joseph Druce, and Chané Van Heerde. This seems like a disturbing pattern, but there are two important points. Most of these killers began drawing after they were incarcerated, and it it impossible to look at a work of art and deduce anything about a person’s likelihood of being a serial killer. Further, Diana suffered serious abuse as a child, and this art was a way to work through his issues.
The jury took just 90 minutes to find Diana guilty. This is Florida after all. He was convicted of publication, distribution, and advertising obscenity. He was sentenced to 3 years’ probation and a 3,000 dollar fine. He was ordered to stay away from minors, despite no evidence that he was a danger to minors. He had to get a psychiatric evaluation at his own expense, and pay for any treatment. He was also ordered to do three years community service at eight hours a week. He was also ordered to not draw anything that could be considered obscene, even for his personal use. Police were allowed to make surprise searches of his home to make sure there was no obscene artwork there.
Here is the funny thing about all of this. Not funny hah-hah though. He was convicted on obscenity charges, which deal exclusively with sex. The most offensive part of his comics are the violence though. We have an exception to free speech for obscenity – sexual content- but there is no exception for violence. That is protected. Sex is not. Welcome to America.
This cannot be found illegal under our obscenity laws as there is no sexual component – it is protected speech
The most bizarre part about our obscenity laws is that, according to Bob Corn Revere, a first amendment lawyer on retainer for the Comic Book Legal Defense Fund, “Obscenity is the only crime that I’m aware of where you don’t know you’ve committed it until the jury tells you you have.” It is all based on community standards, and whether something is found obscene or not is a crapshoot. There is no way to know what is obscene until a jury decides that something is obscene. He was barred from drawing anything obscene, even though there is no legal definition of what is obscene. That you can go to jail for doing something that it is impossible to know whether it is legal or not ahead of time is one of the greatest failings of our legal system.
Another huge problem with our obscenity laws is the notion of community standards. While most content producers create content intended to be distributed throughout the country, our obscenity laws say you can go to jail for offending the local standards of the smallest of hick towns. As prosecutor Stuart Baggish explained “Pinellas County has its own identity, It doesn’t have to accept what is acceptable in the bath houses of San Francisco. It doesn’t have to accept what is acceptable on crack alleys in New York. This is Pinellas County.” Sure, you could refuse to ship to areas that are very conservative- but the bottom line is that you can’t know what a community’s standards are until a random group of citizens from that community makes a determination about your work. There is no workable definition of obscenity. It is whatever a community says it is, and that applies only to the work in question and sets no precedent to create any guidelines. A different jury could come to a completely different conclusion. It is not a decision based on law but on the personal prejudices of the jurors.
The film is narrated by Dead Kennedys frontman Jello Biafr. It incorporates a punk soundtrack with bands such as Screeching Weasel and Misery Date. It opens with a warning: “If graphic depictions of sex and violence disturb you, STOP watching this film NOW.”
For the first time since the trial, you can buy a boxed set of the Boiled Angels comics. I am not endorsing them. I think they have very limited appeal. Still, I do not believe that anyone should go to jail for creating art. Politicians and Prosecutors should not decide what is and what is not art. That is why we have the First Amendment in the first place.