Article by Chuck Shepherd, Playboy, August 1994
THE PLAYBOY FORUM
florida puts the boot to a cartoonist
Recent statistics confirm that Florida, known around the world for its tourist murders and serial killers, has the nation's highest per capita violent crime rate: one every three minutes, 14 seconds.
Florida is lowering the boom of criminals, and residents of Pinellas County awoke on March 29 to this headline in the St. Petersburg Times announcing it: "BOILED ANGEL" CARTOONIST SENTENCED.
Four days earlier, sheriff's deputies had shackled 23-year-old Michael Christopher Diana, loaded him into a paddy wagon and hauled him off to jail pending sentence. Basically, Diana was in trouble for drawing and selling "obscene" cartoons, which appear in his homemade, photocopied comic book Boiled Angel, a "zine."
That an amateur illustrator could face three years in jail for selling his work to an undercover agent seems a stretch even in the upside-down world of Florida justice. But after a four-day trial, Michael Diana was convicted on three counts - two of distributing obscene material and one of advertising obscene material.
The ugly hum of intellectual languor filled the courtroom the moment the trial opened. Oliver Wendell Holmes would not be presiding. The jury would consist of no one remotely like Mike Diana, no one who could tell a zine from a supermarket flier, no one who read anything more controversial than Better Homes and Gardens. Rather, jurors would be those nourished on Sally Jessy RaphaŽl and interviews with Dahmer and the Manson women.
Picture the comic impressionist John Byner, with a beard, attempting a kindly judge with a singsong voice, and you have the Honorable County Judge Walter Fullerton. Imagine the actor Robert Downey Jr. after six months on free weights, and you have subsonic-voiced Assistant State's Attorney Stuart Baggish. Call Central Casting for a "shy, sensitive artist" and Mike Diana will politely stand outside the door for an hour or two before finally asking permission to come in.
Like hundreds of artists of his generation, Diana has rejected the gallery and the art-show-at-the-mall. He turned to the photocopier to produce zines of his work, which he sells almost exclusively through the mail to other artists and zine fans. Boiled Angel has a tiny circulation and is always produced at a financial loss.
Diana's style is neither polished nor subtle, and his subject matter is usually the ugly side of life - religious hypocrisy, violence, parental failings. His images are often sexual - priests sodomizing childen, and women portrayed as victims of rape and abuse. Titles such as Baby Fucked Dog Food and God Up My Ass are poor proxies for the raw outrage of the drawings. Boiled Angel features page after page of intricate monster amalgams that often are emerging from toilets, some driven by their gargantuan, deformed sex organs, many emblazoned with the symbols of the Antichrist.
As both an artist and a zine publisher of others' works, Diana's sense of humour is macabre. In one issue he ran fiction by convicted murderer G.J. Schaefer; in another he published a summary of correspondence and conversations with imprisoned serial killer Ottis Toole. The piece that gave the jury the biggest fit was a 12-step list, How to Be a Successful Serial Killer, lifted from an anarchist zine. In retrospect, Diana should have added an I-dont-advocate-serial-murder disclaimer. The jury, believe it or not, appeared to think he was publishing a textbook on murder.
Actually, the First Amendment protects a murder textbook. Violence wasn't the problem; the occasional gential raised the issue of obscenity. In 1973, the Supreme Court's decision in Miller vs. California provided the definition of obscenity: Will an average person, applying contemporary community standards, find the material taken as a whole to appeal to prurient interests? Does the material depict or describe, in a patently offensive way, sexual conduct that is specifically defined by applicable state law? Does the material, taken as a whole, lack serious literary, artistic, political or scientific value?
The answer to all these questions must be yes. The prosecutors focused on community standards. "Pinellas County has its own identity," Assistant State's Attorney Baggish told the jury in his closing argument. He implored jurors not to accept the standards of "bathhouses" or "crack alleys." Boiled Angel "goes all over the world," Baggish warned, "and it says 'Largo, Florida.' Nice reputation for Pinellas County, don't you think?"
Diana's lawyer, Luke Lirot, argued that the material could not possibly appeal to a prurient interest in sex. His reasoning: The sexual images were too grotesque and deformed to be sexy. He argued further that, whatever the outcome of that debate, the work did not lack serious artistic (or literary or political) value.
But Judge Fullerton seemed to lose control of both the issues and the jury. Contrary to the Miller majority, Fullerton allowed the jury to decide the case on its own prejudices and tastes - not on community standards. The decision seems to have been made solely on the jury's distaste for Diana's drawings.
The prosecution's focus on local standards and tastes was breathtaking. Its expert witness, local forensic psychologist Sidney Merin, reinforced it. In a half-hour incantation during which he was shown drawing after drawing, Merin droned: "That would appeal to a deviant personality." "That would turn on a deviant personality." "That would get a rise out of a deviant personality." It appeared that, to him, any rounded object was a breast, any protrusion a penis, including one surreal moment when he identified the male organ from the mere outline of the state of Florida, which Diana had helpfully labeled FLORIDA. Another remarkable indentification - a pencil as an object of prurient interest - caused a murmur among reporters in the gallery.
Merin, for his $4000 fee, recited the often-heard censor's logic that written material can cause deviant behaviour. Fredric Wertham, in his now-questioned exposť Seduction of the Innocent, tried making the case that comics lead to juvenile deliquency. That's the same logic many antiporn activists use in blaming abhorrent behaviour on magazines. "This is the kind of stuff Danny Rolling [recently sentenced to death for the Gainesville, Florida murders] started with," warned Baggish.
Although the dominant theme of Diana's material was "violence," Merin said that he believes violence and sex derive from the same impulse in the deviant personality. Diana's mutilated, barely recognizable bodies are "turn-ons." Baggish later spelled it out for the jury: First the deviant looks at drawings, then pictures, then films and finally "he's into the reality." Never mind that a serial killer such as Ted Bundy (who was caught in Florida) could find inspiration in anything, even cheerleader magazines.
Particularly damning was Merin's reference to penile plethysmographic studies, in which a subject's erection is measured after he is shown erotica. Certainly, pedophiles get a rise out of photographs of cute kids, but could Diana's crude caricatures generate a hard-on in any man? "Same thing," said Merin. The distinction between drawings and photos is less important in Florida because the legislature long ago declared drawings to be the same as photographic depictions.
Equally anachronistic was the Pinellas County view of art and literature, again underscored by the prosecution's experts, a pair of professors from the Presbyterian-founded Eckerd College. Both stated that Boiled Angel was not "serious literature" or "serious art" (suggesting that the zine does not belong with the classics). But the legal test requires only that the work have some "serious value" as literature or art. Furthermore, each witness, trying to characterize a zine genre with which he was obviously unfamiliar, wound up playing a shell game with Boiled Angel. The literature expery said it was not literature, it was journalism and art; the art expert said it wasn't art because Diana is actually a "storyteller."
Novelist and English professor Sterling Watson called Boiled Angel a "mad rant." But if the jury had read the gang-rape passage from Watson's own novel The Calling, Diana might have had company in the paddy wagon. Art professor and sometime cartoonist James Crane told the jury that if "the arts community" has never heard of it, or if you can't hang it on the wall, it's not art. Make that three in the paddy wagon if the jury had been able to ponder the cartoon Crane said he submitted 30 years ago to a now-defunct radical magazine, in which a man is sitting on a corpse, carving it up piece by pieve, with the caption, "It's all a matter of taste."
The pressure was on Judge Fullerton to top the beating given to common sense. He did not disappoint.
Rejecting the prosecutor's call for two years in the slammer, the judge sentenced Diana to three years' probation, a $3000 fine, psychiatric evaluation and counseling (if necessary) and 1248 jours of community service at the Salvation Army Correctional Services. Diana was also ordered to enroll in a college-level course in journalism ethics or journalistic professionalism, "so you'll learn what it's like to be a responsible publisher," and to stay away, by court order, from people under the age of 18. Finally, not only is Diana to refrain from publishing "material that could be considered obscene," he is also forbidden to "create material that could be considered obscene, even for [his] own use."
To enforce that order, the probation officer will be permitted to conduct warrantless searches of Diana's home to evaluate his altest drawings. When anticensorship forces decry mind control, it is usually hyperbole. Pinellas County takes mind control literally.
At their core, First Amendment cases are culture wars, and the American justice system, the fairest in the world, is impotent if judges and juries fail to comprehend defendants' behaviour in the context of cultural differences. Gangsta rap analyzed by white America is not an expression of rage and boredom but a call for white genocide. Evaluated by mainstream America, Boiled Angel is not an art zine but a handbook on sexual sadism.
The First Amendment and communtiy standards are adversarial. The former protects the minority from the tyranny of the majority, the artist from the indifference or hostility of the moment.
Diana's work covers much of the same ground as the immensely successful movie Silence of the Lambs - albeit without the Hollywood budget, production values or press agents. His work is not pretty, not popular and, in the hearts and minds of the Pinellas County jurors, not permissible.
Don't they have any sense of irony and nuance?
When Mike Diana tries to draw pretty flowers and trees, irony and nuance will be about the only tools the court will allow him.