In response to a reader who asked him why he was sticking up for a manga collector whose comics included depictions of underage sex, Neil Gaiman responds with a reasoned, intelligent, and convincing article about the problems of legal limits on speech. First they came for the manga -- what's next?
So when Mike Diana was prosecuted -- and found guilty -- of obscenity for the comics in his Zine "Boiled Angel", and sentenced to a host of things, including (if memory serves) a three year suspended prison sentence, a three thousand dollar fine, not being allowed to be in the same room as anyone under eighteen, over a thousand hours of community service, and was forbidden to draw anything else obscene, with the local police ordered to make 24 hour unannounced spot checks to make sure Mike wasn't secretly committing Art in the small hours of the morning... that was the point I decided that I knew what was obscene, and it was prosecuting artists for having ideas and making lines on paper, and that I was going to do everything I could to support the Comic Book Legal Defense Fund. Whether I liked or approved of what Mike Diana did was utterly irrelevant. (For the record, I didn't like the text parts of Boiled Angel, but did like the comics, which were personal and had a raw power to them. And somewhere in the sprawling basement magazine collection I have Boiled Angel 7 and 8, which I read back then to find out what was being prosecuted, and for owning which I could, I assume, now be arrested...)Why defend freedom of icky speech? (Thanks, Neil!)...You ask, What makes it worth defending? and the only answer I can give is this: Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you're going to have to stand up for stuff you don't believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don't, because prosecutors are humans and bear grudges and fight for re-election, because one person's obscenity is another person's art.
Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.
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It's a shame that so many generations have to learn this lesson the hard way.
Yes.
"Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost."
Adding that one to my list of favorite quotes of all time!
To quote from Tom Lehrer's song 'Smut', "When correctly viewed, EVERYTHING is lewd! I could tell you things about Peter Pan, or the Wizard of Oz! There's a dirty old man!"
why quote?
"I do have a cause though. It is obscenity. I'm for it. Unfortunately the civil liberties types who are fighting this issue have to fight it owing to the nature of the laws as a matter of freedom of speech and stifling of free expression and so on but we know what's really involved: dirty books are fun. That's all there is to it. But you can't get up in a court and say that I suppose. It's simply a matter of freedom of pleasure, a right which is not guaranteed by the Constitution unfortunately. Anyway, since people seem to be marching for their causes these days I have here a march for mine. It's called...
Smut!
Give me smut and nothing but!
A dirty novel I can't shut,
If it's uncut,
and unsubt- le.
I've never quibbled
If it was ribald,
I would devour where others merely nibbled.
As the judge remarked the day that he
acquitted my Aunt Hortense,
"To be smut
It must be ut-
Terly without redeeming social importance."
Por-
Nographic pictures I adore.
Indecent magazines galore,
I like them more
If they're hard core.
(Bring on the obscene movies, murals, postcards, neckties,
samplers, stained-glass windows, tattoos, anything!
More, more, I'm still not satisfied!)
Stories of tortures
Used by debauchers,
Lurid, licentious, and vile,
Make me smile.
Novels that pander
To my taste for candor
Give me a pleasure sublime.
(Let's face it, I love slime.)
All books can be indecent books
Though recent books are bolder,
For filth (I'm glad to say) is in
the mind of the beholder.
When correctly viewed,
Everything is lewd.
(I could tell you things about Peter Pan,
And the Wizard of Oz, there's a dirty old man!)
I thrill
To any book like Fanny Hill,
And I suppose I always will,
If it is swill
And really fil
thy.
Who needs a hobby like tennis or philately?
I've got a hobby: rereading Lady Chatterley.
But now they're trying to take it all
away from us unless
We take a stand, and hand in hand
we fight for freedom of the press.
In other words,
Smut! (I love it)
Ah, the adventures of a slut.
Oh, I'm a market they can't glut,
I don't know what
Compares with smut.
Hip hip hooray!
Let's hear it for the Supreme Court!
Don't let them take it away!
http://ca.youtube.com/watch?v=Pva35TFiBfI
Some years ago Bob Herbert of the NYTimes wrote an op-ed about thought crimes - where you can be jailed for what you think, in private, if you make the mistake of documenting your thoughts in a personal diary. This particular case is clouded by the individual having a prior conviction for child pornography but the material was never intended for viewing by anyone else.
The Thought Police
July 19, 2001
By BOB HERBERT
http://www.nytimes.com/2001/07/19/opinion/19HERB.html
An excerpt:
..................................................
The thought police have arrived. An Ohio man has been sentenced to seven years in prison for thinking bad thoughts about children and writing them down in his private journal. In Ohio, that's against the law.
It didn't matter that the man never wanted anyone else to see the journal, or that the children he fantasized about were entirely fictional. What mattered to authorities in Ohio -- the only thing that mattered -- was that the thoughts were vile. The fantasies written down by Brian Dalton, who is 22 years old, involved the sexual abuse and torture of children.
...
Mr. Dalton, a resident of Columbus, was charged under a state law that prohibits the creation of obscene material involving minors. Such a law sounds reasonable. But the local prosecutor believed (along with others) that the statute covered not only images of real children, but printed or written words involving fictional children. And not only words involving fictional children, but words that were never intended to be shown to anyone. This is as close as it's possible to get -- short of ESP -- to criminalizing thought.
..................................................
This was also about the time when the US Supreme court was considering the legality of "virtual" child pornography, which somehow was found to be legal. I wonder if it still would with today's court makeup.
Supremes Support 'Virtual' Porn
http://www.wired.com/politics/law/news/2002/04/51856
"had been convicted in a child pornography case in 1998. He served a few months in jail and then was released on probation. His probation officer discovered the journal some months ago during a routine search of Mr. Dalton's home."
"had been convicted" If this was a legitimate conviction involving the victimization of children,
then that puts a different light on it - doesn't it?
Having not heard about the case Mr. Gaiman brought up, I googled Mike Diana. Yup, his stuff is pretty gross. I wouldn't buy it.
His trial seems pretty ridiculous, though. Diana's website quotes the case's judge as having said that, "The evident goal of the appellant's publication is to portray shocking and graphic pictures of sexual conduct so it will be noticed. If the message is about victimization and that horrible things are happening in our society, as the appellant alleges, the appellant SHOULD HAVE created a vehicle to send his message that was not obscene." Since when is it the job of our judicial system to play literary critics? How or why does government have any say in how an artist "SHOULD HAVE" made their art? (caps from the original text).
Takuan, there are a few aspects to your response that I've considered. You'll note that in my comment I did mention that the issue was clouded by the prior conviction of the individual. At its base though the person was convicted for writing about his thoughts in a diary that was never meant for anyone else to view or consider. What child abuse laws do is put marks (as in scarlet letters) on people even after they've served their punishment. In this case the suspect was on parole so it wasn't simply a result of some post jail term extension that is characteristic of child abuse laws. But it was not a crime in any sense that anyone would consider normally. It was though considered a crime in its own right and so might well be applied to anyone. As Herbert notes, a thought crime, though noted in a diary.
Regarding convictions in these child abuse cased I didn't post another series of stories by Declan McCullagh on someone convicted of distributing child pornography. Actually the case involved a plea agreement confession but that was only one aspect of a very tainted prosecution. There's always the thought of why someone would plead guilty to using child porn. Of course few of us have ever faced the onslaught of a righteous prosecution with individuals looking to build careers on their defense of the little children among us.
Kid Porn Suspect's Strange Saga
By Declan McCullagh
2:00 a.m. Dec. 11, 2001 PST
http://www.wired.com/politics/law/news/2001/12/48946
Where Was Kid Porn Evidence?
By Declan McCullagh
2:00 a.m. Dec. 12, 2001 PST
http://www.wired.com/politics/law/news/2001/12/49013
A Look at Pedophile Interaction
By Declan McCullagh
2:00 a.m. Dec. 13, 2001 PST
http://www.wired.com/politics/law/news/2001/12/49083
Where Were Suspect's Porn Pics?
By Declan McCullagh
2:00 a.m. Dec. 14, 2001 PST
http://www.wired.com/politics/law/news/2001/12/49132
Kid Porn Case a Cautionary Tale
By Declan McCullagh
2:00 a.m. Dec. 17, 2001 PST
http://www.wired.com/politics/law/news/2001/12/49141
These links have been updated since their original publishing. Some links at the end of the last article are missing.
Benedict's plea agreement
http://www.wired.com/politics/law/news/2001/12/48940
Indictment
http://www.wired.com/politics/law/news/2001/12/48938
Motion to withdraw plea.
http://www.wired.com/politics/law/news/2001/12/48943
During the late '80s and early '90s there were many cases all around the U.S. of child care workers being convicted of child abuse through the use of "expert" testimony that was years later found to be tainted. Fortunately many of those convictions were overturned though the destruction of people's lives could never be recovered.
The Benedict case also reminds me of a more recent one of a man who had purchased large amounts of a pain killer for back pain that was unbearable. He was prosecuted as a drug dealer and offered a plea agreement which he refused. He was convicted even though there was little to indicate that his story was untrue. We have a conviction of a governor of Alabama on what seems to be a very flimsy case of politicized prosecution. Don't think that if someone is convicted or even if they confess that they are guilty of the crime involved. Sometimes the alternative of fighting for innocence is the lesser hurdle to face. Ironically I think the pain killer involved was the same one that Rush Limbaugh was abusing and in similar amounts. Justice. Sorry I don't feel like checking my archives or googling to get the particular links.
Bob Herbert also wrote about Tulia Texas, where a corrupt sheriff had a goodly portion of the male Black community convicted of drug dealing on completely bogus evidence. The first person prosecuted refused to plead guilty and was convicted to a multi-decade prison sentence. Everyone after that first case plead guilty to lesser sentences. I can't imagine why.
Much of the legal justice system is based on the assumption that one side represents the good guys and the other side has the bad guys. That's rarely the case and sometimes the reverse of common perception is the reality. You'd think that would be more obvious after eight years of malevolence and prevarication from the highest levels of government, on down.
Part of the problem is that the forbidding to "draw anything else obscene" is not part of Diana's sentence; it's part of his probation conditions. These conditions are essentially set at the whim of the judge. If the defendant doesn't like them, he doesn't have to accept; but then he has to go to prison.
A friend of mine, a French national imprisoned in the UK, will soon be released on probation. His conditions will almost certainly include a bar on entering the UK (where most of his family live). This is despite his right as an EU national to move freely within the EU; he still has the legal right to enter the UK, he'll just be imprisoned if he does.
The 'previous conviction' issue is why UK courts used to forbid details of defendants' previous convictions being revealed in court- doing so could be grounds for a retrial. The law was changed a few years ago to allow previous convictions to be revealed where the offences were 'strikingly similar' to the offence under consideration.
It's easy to imagine how an unsure jury could be swayed by previous convictions to think "he's obviously a wrong 'un, lock him up, better safe than sorry".
Freedom of speech does not mean freedom from consequences. If a child porn writer has the same right to speech as you or I, that means the system's working. he should, of course, face the consequences of those actions, but his right to free speech should not be removed.
It's a shame more people don't realise this. The reason why freedom to speak was the first thing amended to the US constitution is that it's so vital to a fair society. if someone removes your freedom to speech, you are not a free human being. However, people have to recognise that *unpopular* speech is the one that needs to be defended. Nobody's going to restrict your freedom to compliment their beliefs, only when you challenge them.
:)
@12 (PaulT) - Allowing "free speech" that comes with a consequence of a jail sentence isn't very free. Or perhaps I'm not understanding what you mean by consequences? Mike Diana did nothing wrong apart from creating disturbing and arguably obscene drawings. In the Handley case, he did nothing wrong apart from owning disturbing and arguably obscene "art." No one was harmed or debased in the creation of these works. To the best of my knowledge, neither of these men have ever acted out any of these fantasies, resulting in the harm or debasement of another person.
So, what consequences do they deserve?
Mike Diana did the artwork for Hunchback's last album, I think.
Its extreme stuff, but pornography and obscenities laws should only extend to published material. Personal stuff made in your own private property should not be effected.
How did a society get created in the first place where lying, corrupt cops,lawyers and public officials can ruin the lives of the innocent in their petty empire building? I suppose eight years of the most cynical, outrageous open contempt for the rule of law had much to do with it. I see recent surveys place teenage dishonesty at an all time high. The social contract is broken,perhaps irrevocably. The last days of Rome? Where are the heroes?
I am a born-again Christian; therefore I believe in completely unfettered free speech. I believe that there are very personal, moral consequences to what we think and say. However, I do not believe that the law should provide civil and legal penalties for those thoughts and words.
If we allow the government to go after 'them', history tells us that soon after, they will come for 'us'.
#17, I was about to post thoughts along the same lines. I wonder if people who agree wholeheartedly with Gaiman in theory would also defend the rights of a Christian pastor to speak freely from the pulpit.
In barbaric societies, opponents to Christianity are still willing to resort to mob violence and murder. For example, as recently as November 23, a Christian church was burned by an angry mob of Muslims. http://persecutedchurch.blogspot.com/2008/11/muslims-storm-church-in-cairo.html
In more civilized societies, laws are advocated that could potentially define anti-sin speech as "hate crimes."
I won't be surprised if some of the same people who defend a comic book promoting what many view to be sin would be opposed to a pastor preaching against something he views to be sin.
I disagreed with President Bush's proposal to funnel federal money to churches for community support, because I could see that coming back and biting churches in the area of free speech down the road.
By the same token, a preacher should be free to advocate for any political candidate they feel most closely represents the values of the Christian church. The fact that the pastor is standing in the pulpit should not restrict what he is allowed to say.
#18 - There's a large difference between preaching against a perceived sin and "mob violence and murder" - I doubt you'll find anyone who would try to equate burning a church as free speech...
So what if people are opposed to your hypothetical preacher? You can oppose something without trying to silence it - just because the person is a preacher doesn't make his/her/its views *right*... if someone says something stupid, they shouldn't be allowed a free pass from comment/debate/call to action on it just because it's based on religious views...
Takuan @ #16:
Mike Diana was tried and convicted in 1994. Larry Benedict was charged in 1995. And the CBLDF has been defending people against the authoritarian abuse of First Amendment rights since 1986.
"Much to do with it" is either overstating the case a bit or positing the use of the Presidential Time Travel Doohickey.
#18 - your pastor is free to support whichever political candidate he or she wishes, in or out of the pulpit or whatever symbol of non-democratic power he or she uses.
What he or she is not permitted to do is to claim tax-exempt charitable/religious status at the same time.
Make your choice and pay your money.
"After leaving the governor's office on January 8, 1991, Martinez was appointed by President George H. W. Bush to the cabinet rank position of Director (or "Drug Czar") of the Office of National Drug Control Policy where he served until January 20, 1993."
so under republican Martinez, Florida gets set firmly in the bush-mold, just in time to charge Diana and load the local justice system with right-thinking nazis.
#21- I disagree. After all, Martin Luther King often spoke of political matters- the rights of black people for example- from the pulpit. Now, if a minister were to run for public office and try to claim donations to his candidacy as tax free....
And back to the main subject, free speech means that the government shouldn't regulate what people are allowed to say and what art they can produce. If someone wants to talk about how Jews are running the country and planning to kill the rest of us they should be allowed to. If someone else wants to tell them to STFU then they should be allowed to as well.
@Silversalty:
"This is as close as it's possible to get -- short of ESP -- to criminalizing thought."
Research "fMRI", as it pertains to "reading thoughts". They are howling on the trail to a mind reading machine, or at least a "lie detector" in the short run.
I read some years back - can't source right now - that they were lobbing hard to have fMRI mindreader tech ruled as admissible evidence in all states by the time they have it ready to go. And it's already been used as "evidence" in other countries.
There's no limit in how far the lawkeepers will go in pursuit of more and deeper "crimes". If not stopped, they don't seem to have any moral breaking points.
You know, I thought: if I post a picture of my great grandfather and his 12 year old bride, would I be guilty of publishing kid porn? It's all about the thought, no?
One of my friends is from Mexico. Her mom married at the age of twelve. Technically her father should be arrested at the border for sex crimes, 13 kids and fifty years later regardless. He, and millions like him. Tens of thousands of men are still alive in the US that married brides who would today be considered children. What about them? Shall we start the arrests?
http://www.reason.com/blog/show/128790.html
Bob@4: Ever heard of "Lost Girls"? It pretty much answers that question, on all points.
#18 wrote: "I doubt you'll find anyone who would try to equate burning a church as free speech..."
I agree, and I definitely didn't mean for my point to be taken as if destruction of property should be allowed in the name of free speech. I was actually saying the church should be left alone, free to exercise free speech.
#21: Pastors DO pay taxes. In fact, they actually pay more than most people who work for an employer. Pastors are responsible for the full 15% (plus change) of their Social Security payments, just like self-employed people.
I think you probably meant to say a church should be taxed before a pastor can exercise free speech.
I disagree. Tax exempt status should be determined by whether or not the organization operates for profit like a business or not for profit. A preacher expressing an opinion does not fundamentally alter the underlying operation.
Of course, there are some churches that abuse their tax exempt status and operate more like a for-profit business. I don't agree, though, that the pastor's freedom speech should have anything to do with it.