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Today, Mike Diana lives New York City, but he grew up in Florida — a place he can’t go back to.

To understand why, we have to go back to 1991, “It was after the Gainsville student murders happened,” says Diana.

The murders were brutal. Some of the victims had been raped, some mutilated and posed in sexual positions. One was decapitated. The crimes received tremendous media attention and they would later inspire the film Scream.

Still, by the following year the police had few good leads. One day, a few detectives showed up at Diana’s door. Turned out he was a suspect in the murders and the detectives were asking questions about a comic book he’d drawn called “Boiled Angel.”

“The copy of number 6 that I sent someone in California. They sent it back to the Florida authorities in the mail,” says Diana “thinking I was a serial killer.”

Boiled Angel 1

The cover of “Boiled Angel #6” depicts a naked man kneeling over a dead woman. The man is ejaculating and holding a bloody knife. The woman has a screwdriver sticking out of her eye and is also naked, her stomach sliced open and the man is pulling a baby out of it.

“I did a lot of baby mutilation, anti-religious material,” says Diana.

The imagery is very graphic, but Diana isn’t a murderer. The police took a blood sample from him and he was cleared of the crime. But Diana wasn’t off the hook. In 1993 he was charged with a different crime: publication, distribution, and advertising obscenity.

“That morning it came out in the paper,” says Diana. “My father said, you know you’re facing three years in prison. Each count has a year in jail, a thousand dollar fine. I went to court to plead not guilty and there was a mob of TV and newspaper reporters.”

There were also protest groups — one called Citizens Opposing Pornography.

“As I was walking into the courtroom they were saying how can you print this kind of material and don’t you care about the children?” says Diana.

The First Amendment says “Congress shall make no law … abridging the freedom of speech, or of the press.” So while you might think you should be able to draw whatever you want, that’s not always the case.

What we’re allowed to draw or not, were determined by a 1973 Supreme Court Case. An adult-bookstore owner named Marvin Miller had been sending out called Illustrated History of Pornography, Sex Orgies Illustrated and Man Slash Woman. The people who received the ads claimed they were obscene and complained to police.

Obscenity laws have a long legal history that dates back hundreds of years in the English speaking world. They were designed to regulate writings and images that included extreme violence and sexuality, but lacked artistic value. In the US, the law evolved to include only sexuality, not violence. However, determining, what is a, extreme and b, what lacks artistic value is difficult. However, the United States does have a definition. It comes from Mr. Miller’s case.

The Supreme Court decided his ads were obscene and therefore were not protected by the First Amendment. The justices also pointed out a problem with the existing obscenity law.

A transcript from the case reads:

“Obviously, one local area will accept material that another local area will not. A national standard could very likely prevent a local community that had liberal attitudes and would accept material from receiving that material because of the restrictive influence of a conservative community some 2500 miles away. And the opposite is also true.”

This is – quite literally – a huge problem. How do you decide what’s obscene when there are so many people spread across a huge country. The court ruled it wasn’t possible to create a a single definition of obscenity.

Instead, the court  created “The Miller Test”, a three pronged obscenity test to decide what obscenity is. In order for something to be obscene it has to satisfy all three requirements:

  1. Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In 1993, when Mike Diana went to court, he faced The Miller Test. And right away, there’s a problem – “Boiled Angel” depicts sex, and yes, it can be considered offensive. But, then again, that was the point. Diana argued that his comic books had value. They were art, designed to make people think about the awful things happening in the world every day so not lacking in serious value.

boiled#7cover

“A big influence for me was watching the TV News. I seemed obsessed with watching the nightly news in Florida,” says Diana. “Lots of reports about priests molesting children. Strange murders… I felt like I wanted to open society’s eyes about what was going on around them. It seemed like people were so desensitized about their surroundings that they didn’t really care about what these crimes were.”

But this raises a new a problem.  Art often pushes boundaries – can those boundaries be pushed too far?

“The difficulty is, it’s never been easy to define,” says Bob Corn Revere, a first amendment lawyer on retainer for the Comic Book Legal Defense Fund which set up Diana’s defense.

“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,” he says. “If you break into a hardware store – you know you’ve committed a crime. But if you produce a work of art or you produce a comic book or something else. You don’t know what’s obscene until someone forces a jury to read it against their will.”

To add on to this confusion, consider that an artist’s idea of what is obscene is often different from a jury’s. This has been a problem for performers and artists for a long time. Look no further than comedian Lenny Bruce.

“Prosecutors went after Lenny Bruce in part because his work was very challenging,” says Corn Rever. “It included social commentary. It included criticism of religion.”

Bruce was charged with obscenity multiple times in California, New York and Illinois. (Bruce was convicted once and posthumously pardoned)

“It’s almost impossible to imagine today,” says Corn Revere. “It’s almost impossible to imagine in today’s world. This happened at a time when society was going through a lot of change. At the same time, the courts were going through a lot of change. The Supreme Court was struggling with how to define obscenity. And this is the kind of thing that received obscenity prosecution. Just as steamy novels were the subjects of obscenity prosecutions.”

The biggest problem for Diana was the third criteria of the Miller Test — the community standard. It didn’t matter if some people in other parts of the country thought Boiled Angel was art — his jury in Largo didn’t.

“Pinellas County has its own identity,” said Stuart Baggish, head prosecutor for the State of Florida, “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.”

“If we suppress obscenity, it’s because we as a community, don’t want people behaving like that in public,” says Robert Post, dean of the Yale Law School. The Miller Test, he says, forces a community to draw a line between art and obscenity.

“What sort of things do you want to study, and what sort of things do you want to burn in the street?”

That line changes as time goes on.

Take the photographs of Robert Maplethorpe. They’re black and white polaroids that depict bondage, BDSM, and nude children. Today, they’re considered high art, but though he wasn’t convicted, when the director of the Contemporary Arts Center in Cincinnati displayed the same photos in 1990, he was prosecuted for obscenity.

“When you ask a question like is the Mapplethorpe obscene the presupposition is that there’s a definition of obscenity that is real,” says Post. “What I’m suggesting is it’s always a sociological marker of what’s acceptable and what’s not acceptable.”

Which is what the prosecution was trying to prove in Mike Diana’s case — that at that time, and in that place Boiled Angel was not art.

Consider Diana’s comic “Baby Fuck Dog Food”.

“Which was based on a true story,” says Diana. “A newspaper article about a family who ended up killing their baby and feeding the remains to the dog to get rid of the body.”

The prosecution brought in an art expert from Eckerd College in nearby Saint Petersburg, Florida.

“The art expert had made large blowups of the comic on poster board and was pointing out different things,” says Diana.  “He pointed out the lines. He said wow, do you see the way he drew these lines. It shows the power, the power in this drawing. And every time it was called a drawing, the prosecutor would say, but this is not considered art, right? And the art expert would say. No absolutely not.”

boiled#8cover

At the end of the trial, Diana was found guilty and was sentenced to 3 years’ probation and a 3,000 dollar fine. He was ordered to stay away from minors and had to get a psychiatric evaluation at his own expense, as well as any treatment necessary and three years community service at eight hours a week.

“I was ordered not to draw anything that could be considered obscene. Even for my own personal use,” says Diana. “And police were allowed to come to my house to make searches. Surprise searches to look for artwork.”

Diana appealed the case, but he also left Largo for New York City where he still lives now.

Diana’s trial took place in 1994, but things are different today

Says Robert Post, “The amount of obscenity on the internet is staggering.”

There’s a ton of porn out there on the internet. It’s impossible to say how much, but estimates say anywhere from 4 to 37 percent of the entire Internet is porn. Today, the makers and distributors of it are rarely prosecuted for obscenity. Even before the Internet, prosecutions of obscenity were becoming less common. Post attributes  our softening stance to our evolving views on sexuality.

But the obscenity law still survives. In 2005, then attorney general Alberto Gonzales set up an obscenity-prosecution task force. About 360 people were charged with obscenity during the Bush administration.

“No one quite understands why it survives as an exception to general freedom of speech,” says Post. “The one answer must be that the Justices of the United States Supreme Court believe that unless the law sets a floor of how you can behave in public we will corrupt ourselves as a society and lose any sense of decency.”

It would be nice if the obscenity law was clearer, but, then again, it seems hard to imagine what one obscenity law might look like – just one law that weaves together cultures and sexual norms – for all of us. One that draws a line that clearly says, you can say (or draw) this, but not that, and one that everybody in the country would agree on.

Until we have such a law, artists like Mike Diana are prone to getting caught on the wrong side of the line. When he left Florida and moved to New York, Diana violated his parole. If he goes back, he’ll be arrested.

“I hope to someday be able to go to Florida freely,” says Diana, “to get the probation and all that taken care of and out of the way. And I’ll feel better about it then.”

Now, Diana lives as a cultural exile. Though his work is shown in spots as far-flung and sophisticated as New York and London, it’s still not considered art. Diana’s work is also shown in Miami, but nearby, in Largo, it’s not considered art, instead, it’s seen as obscene. Somewhere between Largo and Miami, Diana’s work becomes art. It’s just not clear where that place is.

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Editor: Sally Herships

Audio Production: Kaitlin Prest

Life of the Law © 2017