A Fanboy's Genuine Question Question - Steve Ditko's non-Marvel/non-DC title's The Question and Mr. A seem not to be very available, and I've not had a chance to read them. These are the titles where he explicitly incorporated his Objectivist politics and it's a commonplace that he ruined them by being "too preachy." What I'd like to know from people who have read them is, were they? Is it preachiness itself that people object to with these books or what was being preached? Were they "preachier" than the comics of other highly-regarded Bronze Age authors? Than Steve Englehart and Steve Gerber? The O'Neil/Adams Green Lantern/Green Arrow? I can't say, cause I ain't seen, but one thing the early Bronze Age did not lack for was preachiness. So if you know, please tell me.

Tomorrow - Absolutely everything Dirk Deppey is wrong about, and, time permitting, what superheroes are for! I'll probably toss in a couple of the many things Dirk is right about too, cause I'm so genial and can't write a focused post to save my life.

In the Interests of Research I've reserved a copy of Demon Beast Invasion from the excellent Big Planet Comics in Bethesda. $16.95 and the cover, I have to tell you, does not appeal. (I mean, centaur fellatio is one thing, but this . . . ) This is going to keep me from picking up Love Hina or Chobits this week, but dammit, my readers come first!

Demon Blog Invasion 2 - William Dyer has added a substantial update to his analysis since this morning, so it's worth going back to his item if you read it more than twelve hours ago. Amused in Review notes, acerbically, "I definitely think you ought to expect more of a lawyer who manages to rack up $60,000 in fees defending a misdemeanor case that netted a $4,000 fine and 180 day suspended sentence."

Having assumed too much on the one hand, I am not now going to assume as proven the arguments against Castillo's counsel. But again, these are important, and if there's a comics press worthy of the name it needs to investigate them. That means starting with the analysis of Dyer and my reader, mysterydave, going beyond it to the trial transcript, and getting responses from both the CBLDF itself and outside experts. (Really one should talk to the prosecution too.) If CBLDF needs fixing or CBLDF turns out to be a bad vehicle for safeguarding the rights of comics creators and merchants, the field needs to know that. If the errors are, for some reason, lesser than the legal analysis we have so far indicates (say, because of problems with the trial court judge), we need to know that too.

Demon Blog Invasion - Tonight was to be He Responds to his Critics Night across the board, but other commitments (the lawn and exercise) have cut into my blogging time, so I'll probably only deal with the Castillo case, where my errors are most egregious. This is partially a "blog in haste, repent at leisure" item, and partially not.

The first error was important enough to correct mid-day, which was forgetting to paste in the link to Ampersand's initial item on the Castillo Affair from yesterday. See his response to my item of this morning, and finally, his general censorship principles item of this evening.

The first thing to be said is that, on two essential principles, Ampersand clearly got it right and I clearly got it wrong. Specifically, Jesus Castillo was convicted of a misdemeanor, not a felony, and has not served jail time and won't if he successfully completes his probation. I could have avoided this mistake if I had taken the time to read William Dyer's important item before relying on the single news source I'd had until that time. This is what happens when you're rushing to opine before the morning commute, or anyway, when I'm rushing to opine. A useful lesson. Dyer's points overlapped with a couple of e-mails on the topic that I exchanged with reader "mysterydave," but included new material. mysterydave, himself a lawyer, also criticized Castillo's representation:

First, it looks like the CBLDF really screwed the pooch on this case. I pulled the appellate opinion off Westlaw, State v. Castillo, 79 S.W. 3d 817 (Tx. App. 2002)(it may or may not be on the regular internet, haven't checked). In particular, CBLDF consistently failed to object when the state did something outrageous; like, for example, testifying about the presence of a school in the proximity of the store, or asking a police officer to give an expert opinion on the artistic/political merit of a piece of Japanese culture. Castillo loses these arguments on appeal because the CBLDF failed to properly make or renew objections. Which means these might--might--still have been decent arguments if properly preserved.

Second, the argument that everyone has jumped on--that comics deserve special scrutiny as "kid's stuff"--is missing from the appellate opinion. It's not there. Castillo never raises it, the Court never deals with it. Which suggests to me that the CBLDF either failed to raise it, failed to object to it in the trial court and thought it couldn’t raise it on appeal, or that the appellate court simply ignored it. Either way, the appellate court never adopts this standard for comics, and it's really not fair to suggest it did. And for the record: suggesting that comics need special scrutiny is a bad, bad argument, for the reasons everyone else has noted.

The third point, and a point on which it is fair to jump all over Texas, is that its obscenity argument is completely circular. To whit: something is obscene if it is (paraphrasing) offensive to community standards, shows the naughty bits, and lacks artistic value. One shows community standards by, presumably, showing that the community is awash with porno--which Castillo in fact did. Except that in Texas, "the fact these books were available does not mean they were not likewise obscene." State v. Castillo. Which obviously puts Castillo in a bind, and makes it nearly impossible to demonstrate community acceptance. Put on thirty random citizens, all of whom shout they love hot girl on girl action? All it means is that they partake in obscenity...In fact, in a case on which the appellate court relies, a PORN STORE was hit for selling an obscene video; the fact that sufficient demand existed to justify an entire store devoted to porn is evidently not sufficient to show community acceptance. In Texas, apparently, economics is not taught very well.

Finally, a point not raised in the trial court or on appeal, but interesting nonetheless: when looking at artistic value, does one look through the prism of the culture that generated the work or the culture in which the work was consumed. Or in other words, can something have artistic value in Japan but not in Denton? A big question to answer in the internet age….

I asked him what arguments the defense did raise on appeal and he wrote

The opinion is online.

And actually, quite a few arguments were left. In a nutshell, Castillo argued that: 1) even if it was obscene, Castillo didn't know it was obscene, 2) Texas failed to present sufficient evidence to prove the comic was obscene, 3) Texas erred by concluding that the single volume of the seried was obscene, when, viewed in context, the entire multi-volume series was not obscene, 4) the comic was not "constitutionally obscene," 5) Texas erred by admitting evidence about the elementary school, 6) the police officer was not qualifed to give an expert opinion on artistic merit, 7) and the sentencing hearing was not recorded.

Dyer argues that many of these arguments failed because of the conduct of Castillo's lawyers during trial. mysterydave, who asks that we bear in mind that his specialty is construction rather than constitutional law, also muses:

Well, bear in mind that I haven't seen the trial transcript; and it is entirely possible that the appellate court is being unduly restrictive in determining if an objection was made or not. So while it does look bad for CBLDF, it's not conclusive...though I wonder if using lawyers from Buffalo in a Texas court had anything to do with it.

The competence of Castillo's legal team is not an issue where Ampersand is right and I am wrong only because I agreed this morning that incompetence may have been a factor, and indeed called for comics journalism to take up the question. We can't allow general warm feelings toward the idea of the Comic Book Legal Defense Fund to prevent questions about how well it is carrying out its mission in practice.

So the second crucial issue that goes his way is whether the Supreme Court's decline of a writ of certiorari establishes a precedent that comic books as such are to be held to a different obscenity standard than other media because "comic books are for children." It appears that no court at any level of the appeal process specifically endorsed this argument of the prosecution. We cannot, as Ampersand notes, say for certain whether the jurors were swayed by the prosecutor's argument or not, but it's entirely possible that they simply applied Texas obscenity law, within the context of Miller, the same way they'd have applied it to a video, a glossy magazine or a weblog.

I put these points first because they are important - by some arguments the most important. And I welcome Ampersand's explanation that

On the contrary, I'm saying the censorship laws should be narrowed, so that fewer works are deemed "obscene" and therefore lacking first amendment protection.

which is a useful clarification of his earlier statements, which seemed rather dismissive of the trouble in which Mr. Castillo and Keith's Comics found themselves.

Here endeth the points of agreement.

Start with the picayune. Ampersand objects to my phrasing at one point:

I'm not sure what Jim means by a "feminist" disapproval [ed. "approval" in original] - as anyone who knows feminism knows, many feminists disagree about obscenity laws. (Try asking Nadine Strossen, the very feminist president of the ACLU, or Avadon Carol what they think).

The diversity of feminist views on obscenity laws is true but not germane. I am familiar with both Strossen's and Carol's views and indeed admire them. You could say that they share a feminist disapproval of obscenity laws, since their stances grow out of their concerns for the harm censorship does to women. But that doesn't change the fact that many people support obscenity laws for what they consider to be feminist reasons. I could find conservative christians who abhor pornography but are against state prohibition of same at any Libertarian Party convention. But I could still speak of Jerry Falwell's "religious approval of censorship laws" regardless of the diversity of views on censorship among Christians.

(Ampersand's clarification means that he doesn't support existing obscenity law, though the clarification itself, a response to reader inquiries, demonstrates that I wasn't the only one to conclude, on the basis of what he wrote, that he did.)

I have two demurrals to the mea culpa section of this item.

First, Ampersand and William Dyer make much of the fact the courts have not established a precedent that "comics are for kids," and their arguments seem sound enough. However, it's clear, precedents aside and competence of the defense aside, that the prosecutor in the case, a government official and officer of the court, attempted to sway the jury with precisely that argument. We do not know that it worked, but neither do we know that it didn't. We do know that the argument is outrageous, prejudicial and unworthy of a man sworn to uphold justice rather than win cases. I know, I know - call me quaint.

Second, stipulating my bonehead error about Castillo's sentence and level of criminal record, there is still reason for comics readers and supporters of free expression to feel outrage about what happened here. The harm to Castillo and Keith's Comics is still considerable. The fine, per the Dallas Observer, was paid by donors. (Link via Franklin Harris.) However, since at least the time of Bleak House we have known that to be involved in a law case is itself a harm - a real harm to an identifiable person measurable in time diverted from productive or entertaining activity, anxiety and usually, financial stress. That's if you win. And every trip inside the courtroom is a risk, no matter how strong your position on the face of it. If Dyer and mysterydave are correct about the errors of Castillo's counsel, that only further highlights the risk and the harm - Castillo's fate was substantially at the mercy of his own representative.

No, this is not uniquely true of the Keith's Comics case, it's a standard feature of the court system (civil and criminal). That's the point. It's the reason why the sphere of the criminal justice system needs to be kept as narrow as possible, and certainly narrower than this.

Ampersand says "Mr. Castillo was sentenced to a year's probation; assuming he doesn't break probation, he won't spend any time in jail." Given that Castillo didn't know he was committing a crime in the first place, it's entirely possible that he could break his probation without knowing it.

Consider one of the errors Dyer attributes the defense in his excellent analysis:

Fairly stiff fine, wasn't it, though? And the appellate court refused to disturb it when Castillo asked it to, right? Well yes — but not necessarily because the Court agreed with the fine. You see, Mr. Castillo's lawyer didn't ask for a court reporter to make a record of the sentencing in the trial court. That being the case, there's no way he could show the appellate court that an objection to the size of the fine had been made to the trial judge — and you have to show that you tried to fix stuff in the trial court before the appellate court will fix things for you on appeal.

As a non-lawyer, my immediate reaction is, Wha-??? They don't record a sentencing hearing unless the defense counsel asks them too? Why the hell not? Point being, a requirement that the defense counsel specifically request that such a record be kept has nothing to do with justice as such, but only with procedure. Thus justice comes to depend on procedure. It may well be that it's the only way our courts can function. But it's also why it should be hard to drag a citizen into one.

In the end, we still face the core facts: an adult sold a product labelled for adults to a fellow adult. The seller was convicted of a crime for his role in that voluntary transaction. The state's representative attempted to prejudice the jury pool by invoking phantom "children" who played no role whatsoever in the exchange that took place in that shop on that day. The defendant may have lost his case because his legal counsel was not up to snuff. I'm still appalled.

Castillo - Franklin Harris has the links. Two notable dissents from the outrage have been raised by Ampersand and William Dyer. Both argue that Castillo's lawyers did a poor job defending their client. Ampersand further expresses a feminist approval of obscenity laws generally and their application to the comic in question - which is to say, contentment that a retail worker should spend 180 days in jail for selling a magazine to a grownup, pay a $4,000 fine out of his retail salary and record a felony conviction for an inflammatory charge on every job application he completes for the rest of his life.

More tonight, but it strikes me that there are two roads forward. On the journalistic road, we need to determine how culpable the CBLDF's legal representation is for the way the case turned out. As activists, the only way to secure justice and mercy for Jesus Castillo would appear to be a pardon drive. This is probably an uphill fight in Texas, but it needs to be waged. Volunteers?

UPDATE: Forgot link to Ampersand's item - just added it. There's also a follow-up that I can't respond to until later.

FURTHER UPDATE: Substantial errors in this item are corrected in the one immediately above it.

Speaking of Economic Rights - It is outrageous that Tonasket constitutionalist Mark Alan got busted by the feds for operating a five-watt radio station in the middle of nowhere. Drive any distance outside a metropolitan area and you quickly hit "dead zones" on your tuner - areas where no FM station comes in. That's on the east coast. I can't imagine the situation doesn't obtain in the more sparsely-populated west. A clearer example of how regulatory regimes come to serve entrenched interests could hardly be imagined. In these cases the entrenched interests include the big media companies and National Public Radio, which vigorously opposed the mild loosening of microstation broadcast rights recently proposed by the FCC. Odious they are, but Clear Channel and Liberty Broadcasting et al are products of a regulatory regime - one whose insistence that the FM spectrum constitutes a commons created a "scarcity" that a more open approach would have had incentives to overcome.

Signs of Life II - Patrick Nielsen Hayden also picks up the story of Tonasket, Washington. He quotes the text of the anti-PATRIOT resolution and observes, "Symbolic and toothless? Surely. These things take time. Don’t underestimate the potency of symbolic action."

A Fanboy's Notes: I Always Wondered That Myself - Quotable:

Also, as I had to admit to myself, The Avengers never made much sense as a team [name]. The Defenders were defending. The Justice League were a league that represented justice in America, but The Avengers? Who were they avenging? Batman's parents?

From an interview with Ultimates writer Mark Millar.

So We Will Be Weirdos Together - Dirk Deppey explains that he doesn't have any animosity toward superhero comics, he just outgrew them. He also quotes Grant Morrison approvingly on the appeal of Japanese manga:

I’m definitely much more interested in what's happening on the fringe where comics cross over with general pop culture and I find myself resonating strongly with the super sci-fi, hyper-realist and fantastic elements which teenagers are absorbing again via comics and via artifacts which owe very little to the weird reiterations of the superhero books.

Morrison also likes the fact that manga excites young readers in a way that US superhero comics no longer do.

So, longstanding Japanese pop culture cliches are fresher than longstanding American pop culture cliches. Got it.

Once upon a time, American superhero comics were bad because they only appealed to children and adolescents and not to adults. Now they're bad because they don't appeal to children and adolescents, but only to adults. That's some bad timing, huh?

Now, I agree completely with Dirk et al that comics need to comprehend more than superhero stories to survive, and I believe that manga clearly has commercial appeal and people who want to make money should sell it. (I haven't been able to find all these comic book stores that supposedly don't. All the shops I go to have manga prominently displayed.) But it seems to me the problem with comic books is less that Americans don't like superheroes than that Americans don't like comic books - for whatever reason. Seven-year-old Offering Boy loves both the animated Justice League and Teen Titans series. While he reads the kid-oriented Justice League Adventures, he has shown no enthusiasm for other children's comics. Scooby Doo? Powerpuff Girls? No and no, despite loving the TV shows. There are kids comics available, to the indifference, from what I can tell based on sales figures and anecdotal experience, of actual kids.

I also take Dirk and Morrison's point about the involuted nature of contemporary superhero stories. Heck, I've made that point myself. Sometimes I despair of anything genuinely new coming out of the genre - the best we can hope for, apparently, is superb pastiche.

Anyway, Eve Tushnet has turned into a much better "semi-comics blogger" than I, and she's been musing a lot about the appeal and validity of the superhero as a concept. Her latest take compares superhero comics to opera:

I think the comics/opera parallel may have value, and help illuminate some of the recent wrangling over superheroics and highly exaggerated characters and situations.

This makes sense to me. And it reminds me that Mrs. Offering's take on the first (hugely sucessful superhero-oriented) Batman movie was that it was really an opera, and she liked that aspect of it.

(Note: the obscure title is a quote of Toiler's from our current gaming campaign. Sorry, I couldn't resist.)

Outrage of Last Week - Peter David's argument against the validity of obscenity laws reminds me that I didn't write about the appalling case of Jesus Castillo last week during my service outage. This is bad because everybody should be writing about Jesus Castillo.

The story: Jesus Castillo worked in a Texas comic book store. He was busted for selling an erotic comic to an undercover officer. These facts have not been disputed: Castillo is an adult. The cop was an adult. The comic was displayed in a separate Adults Only section of the store. The cop was under no compulsion from Castillo to acquire that particular comic. (An excellent, appropriately disgusted recap, comes from Franklin Harris' Pulp Culture column. I cannot recommend this article highly enough.)

The Comic Book Legal Defense Fund provided expert witnesses to attest to the artistic and literary qualities of the comic in question. The DA told the jury that none of that mattered, because comic books have "always" been for children and the "adult" comic was therefore obscene by definition. The jury bought the argument and convicted, the trial judge let it stand and, last week, the US Supreme Court declined to review the case.

This is an outrage. The Supreme Court has said that government may define the boundaries of permissible content for an entire medium - and incidentally to do so with blatant disregard to the simple facts of that medium's history. It's a hideous abridgement of both creative and economic rights, arbitrarily sanctioning one party of a voluntary exchange of value for value as a criminal. Every comics blogger worth his or her salt has noted this matter, but that's not enough - this is the sort of obscenity political writers should decry as well.

Fires and Theaters - Peter David has a useful item on the famous Oliver Wendell Holmes quote about conflagrations in densely populated showplaces:

What is often glossed over is that Holmes' oft' misquoted statement was part of a decision that supported a staggeringly grotesque abuse of free speech.

And then he tells you how. He's right, and wouldn't you know it, Most Evil American in History Woodrow Wilson is involved.

Signs of Life - From my old friend Bruce Fleming, this story of small towns in Washington state declaring the PATRIOT Act and possible successors "unenforceable in our jurisdiction."

John Q., in Alan's mind, is only now waking from a "9-11 slumber" and realizing it's OK to act like an American again. To him, that means asking hard questions about actions taken in the name of national security, from the war in Iraq to the Patriot Act (sic), that amount to "textbook fascism."

Sponsor Mark Alan is a convicted microbroadcaster, though I doubt his station, as described in the article, is the sort of diversity of the airwaves that Avedon Carol has been hoping for. The article describes him as a Libertarian Party activist, one who clearly sits on the starboard end of the party bench. Well, good for him, and for the Tonasket town council members who turned his initial wording into something everyone could support.

The article makes the point that the enforcement value of the resolution is unclear. It might mean something if we had federalism worthy of the name, but we don't. Liberals might wonder if state and local rights are really just excuses for racism after all, given PATRIOT Acr resistance and local efforts at drug law reforms.

But the cultural sign strikes me as important. It's hard to tell, but I used to like George W. Bush. Not enough to vote for, you understand, but I was glad he became President instead of Al Gore; I thought the initial, overly timid tax cut had at least the chance of restraining future spending growth; and some of the things he did in the immediate aftermath of the September 2001 massacres were praiseworthy.

But there is nothing worse than a leader who aims to keep his people in fear, and that became the administration's raison d'etre. Fear of third-rate foreign powers, of allowing people the government deems suspicious basic rights, of asking reasonable questions about dubious new bureaucracies, fear that the Bad Thing could happen again at any time and we wouldn't want that and mustn't stop thinking about it - at least not so long as the administration wanted more power. Perhaps, just perhaps, the act is wearing thin.

Back Home - Much fun in New York yesterday, much aggravation getting there. Traffic on Long Island was awful - apparently, there are a lot of people in the New York metropolitan area. Who knew? After lunch with Mrs. Offering's delightful relatives in Glen Cove it was back to the Cobble Hill section of Brooklyn and the luxurious antebellum townhouse of the Talking Dog. Dinner with your TD, his wonderful wife Mrs. TD and delightful daughter, FKA (formerly known as) Baby TD - now, really, preschool TD. That part of Brooklyn reminds me a little of the Woodley Park section of DC, but nicer. Important barometer: most homes do not have bars on their windows. Most amusing upscale touch: the kids' clothing store whose sign avers that it has children's fashions and designs from "Europe's top leading designers" (sic).

We got downtown just after PNH's band, Whisperado, started their set. Patrick was not happy with the house sound system, but everything came through well enough for me to realize that he's a very creative guitarist - he can do a flawless, precisely-skipping Bo Diddley beat, but also comes up with very inventive fills, and seems to handle rhythm and lead with equal fluency, pretty important for the guitarist in a trio. Mr. Singer Guy plays a nice bass and is almost certainly a pretty good songwriter too. (The vocals were mixed far enough down to make certainty on this score impossible.) Whisperado describe themselves as playing "American music." I'd say they sound more like X than the Blasters most of the time. Their backup, and occasional lead, singer, Hallie [something], has an amazing set of pipes and, no lie, toured with Big Brother and the Holding Company aforetimes. (And lived . . . )

Afterward, the blog-related gang ducked out, to the vocal displeasure of the next band and the promoter, since we were a significant chunk of the audience, and headed for the Second Avenue Deli. (Motto: We charge a lot, so you'll have room to sit!) It was a veritable commission meeting of the New York Science Fiction mafia. In addition to seeing Patrick and Teresa again, I got to finally meet Avram Grumer and Kevin Maroney. Christine Quinones was there. Various Grumer houseguests and housemates. Yes, I was surrounded by liberals and leftists, each of whom spent at least a little of their evening explaining the aspects of libertarianism they most disliked. Then they pulled my shorts down and filled them with whipped cream.

Kidding! Whipped cream is three dollars a squirt at the Second Avenue Deli. Kidding again! Anyway, a wide-ranging conversation about blogs, SF, music, politics, a little comics and, you know, other stuff. A good night's sleep on the surprisingly comfortable Talking Sofa Bed, and a subway trip to midtown with your TD (who had to work). Went to Jim Hanley's Universe, which I've long wondered about because of the name. Thought about going up the Empire State Building, but the lines were too long.

It was fun being in New York. People seem nicer now than they did, oh, ten years ago. The streets still smell of sour milk, but so do Georgetown's. A street vendor had a box of Driscoll's raspberries for two dollars. Cool! Your Talking Dog, because of his specialty in construction law, filled me in on all kinds of interesting tidbits about the nuts and bolts of the city infrastructure.

Then I found out it costs $8 to cross the Verrazano Narrows Bridge on the way west. Jeez! I forcibly reminded myself of my approval of user fees. I hope someone's taxes are lower because of my contribution. The Talking Dog has his own account of events with links to everyone's blogs and livejournals. Avram Grumer asserted last night that blogging is over, livejournaling is where it's at, and that LiveJournal will be over in about two years.

So that's probably when I'll start.

Tomorrow: something like regular blogging resumes. Here, I mean.

Weekly Fitness Blog Item - Abbreviated since I've got places to go and people to see. (See below.) Weight 167; "waist" closer to 34" than 35". Back on track, perhaps. I'm conceiving a new fitness scale based entirely around my Halloween costume goals. It runs roughly:

1. Kingpin, Ben Grimm "Thing" shell, Frimme Hersh from A Contract with God
2. Doctor Octopus, Foggy Nelson
3. X-men movie jumpsuit, Batman movie outfit with fake chest piece
4. Spiderman, Flash, Green Lantern (Gil Kane physique)
5. Daredevil, Batman comic-book costume with no prosthetics
6. Captain America, Superman
7. Green Hulk body paint plus ripped purple pants.

I'm about at 3 now, aiming for 4. I think 5 is probably out of reach for this Halloween - 6 definitely. To 7 I do not aspire.

Useful link of the week comes from Jessica Grieves: the Sizing Down Clothing Exchange. It aims to provide an affordable way to cycle through lower size clothes on your way down. It appears to be set up only for women's clothes right now, and it's just getting started.

Jeremy Scharlack is back with the latest. He's found a low-carb chocolate bar he likes.