Barry Deutsch takes issue with commenters on the Castillo case, defending the court’s decision and the classification of Demon Beast Invasion as obscene. (Whether he thinks the clerk is the correct person to punish in this instance isn’t clear, but leave that for now.) There are two main contentions Barry offers, both of which I think are wrong: first, that the medium (comic books) isn’t relevant, meaning defenders of the form have nothing in particular to worry about as a result of this decision, and second, that DBI is properly ruled obscene.

First, on the question of the medium. Barry points to the 5th Circuit ruling, which, he observes, does not turn on the question of whether comic books are “for kids.” But to look only at the appeals ruling is to neglect the reality that we wouldn’t have gotten as far as an appeals ruling in any other medium. As the 5th circuit notes:

[One witness] went to a number of different stores near Keith’s and bought magazines depicting various sexually explicit material. For instance, at a convenience store less than one mile from Keith’s, he purchased a Penthouse magazine that had color photographs of men and women performing sex acts and a story of two women having sex with a grasshopper. At a nearby adult boutique, Christopher bought three other magazines that depicted oral sex, anal sex, sex with multiple partners, and bondage. Christopher testified he has gathered these types of material all over North Texas. When asked if the materials were acceptable in the State of Texas, he replied, â??I guess so. They are sold all over the place.â?

So why aren’t Penthouse or Hustler or Anal Fireball XXIV or whatever being dragged in front of mouthbreathing juries for similar condemnation? It takes no great leap of imagination to conclude that the difference is boung up with the perception of comics as a juvenile art form. Moreover, even if the appeals court didn’t explicitly refer to the medium, it is almost impossible for me to believe that it would have adopted this cavalier “well, the jury didn’t seem to think it had artistic merit; no need to consider the matter further” attitude had a similar decision been reached with respect to a novel or a painting in a gallery.

Then we come to the second question, that of whether the book is “obscene.” I haven’t seen the book, but Barry’s comments, in which his feminist impulses manage to bludgeon to death his liberal ones in an overwhelming display of superiority, make as good a case as anything I could say against the whole notion of attempting to classify “obscene” material.

Y’see, Barry can tell that DBI is”misogynistic crap” without merit… apparently because he can’t imagine his artist friends recommending it, which is a rather high bar to set. It’s just obvious to Barry that the experts brought in to testify, who did find some merit in it (whether they’d actually recommend it or not) were mistaken about this “badly drawn hackwork.” And there could never, ever be any such confusion over his own work, so what’s with the worry about slippery slopes? After all, surely the difference between “hackwork” and genuine art can be determined by anyone with simple common sense. That’s why so many blue collar Texans have the work of Jackson Pollock hanging over their mantles.

The key line in all of this is the following: “It had no artistic merit – at least, not to anyone who doesn’t consider the idea of artistic worth to be more than a joke.” Well, in the sense in which it’s deployed here, it is a joke. It’s a code word for “approved of,” as Barry’s post so readily proves, a way of putting an objective gloss on the popularity-contest method of regulating speech that the First Amendment is supposed to prevent. To the extent that the notion is defensible at all, Barry’s own violent reaction to the piece proves pretty conclusively that it does serve one of art’s prime functions. I recall a related debate on the “nettime” list a few years back over a floor installation that showed video of a woman who reacted as though being kicked when people trod across it. The difference there (if it is a difference) is that the reaction of shock and horror was intended by the artist. Now, I wonder… if it were revealed that DBI had been penned by someone with similar intentions, would Barry have the same reaction? And if not, what do we make of a legal regime in which the difference between meritorious art and criminal obscenity turns on Barry Deutsch’s opinion of the artist’s political purpose?