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March 16, 2012

Charles Brownstein On The Lessons Of The Manga Customs Case

imageExecutive Director Charles Brownstein of the Comic Book Legal Defense Fund was nice enough to take time from his busy WonderCon weekend schedule to answer a few questions about the just-concluded Customs Manga case facing Ryan Matheson since 2010. With all criminal charges dropped, my attention drifted towards the contexts by which we're to understand its conclusion, the implications for the comics industry and the potential for other prosecutions of this nature.


TOM SPURGEON: Is there any indication as to what specifically led to the charges being dropped? Was it someone reviewing the case, something the defendant's legal team specifically worked out, something measurable like that?

CHARLES BROWNSTEIN: My understanding is that the breakthrough was a change in prosecutor shortly before the scheduled February trial date, coupled with the fact that Michael Edelson and his team developed an astonishingly strong defense on a wide range of constitutional grounds that would have been likely to prevail in court.

I think that the facts were very bad for the prosecution. Ryan was outrageously mistreated in the course of his ordeal: his search was not conducted in a constitutionally valid fashion; he was denied access to counsel; he was denied basic necessities like food and blankets; he was denied access to the American embassy; he was taunted by police who actually told him he could be raped.

And the art in question had unquestionable artistic merit, was not obscene, and was not child pornography. One of the two images that we believe to have been at issue is this Moe style parody of the "48 positions," which is a kind of Japanese Kama Sutra, which is itself a parody of the 48 Sumo positions. This link has background on the source images.

The other piece we believe to have been in evidence was in the anthology Mahou Shoujo Ririnana. The entire anthology is derived from an existing anime called Mahou Shoujo Lyrical Nanoha StrikerS. ("Magical Girl Lyrical Nanoha StrikerS"). I am still working to locate the exact page in question (not all the evidence has been returned yet, and who knows what condition Ryan's computer will be in when it is), but we believe it depicts the fictional characters Reinforce, a 900-year-old computer program that is about a foot tall, and Vivio, a non-human shapeshifting magic creature who takes on a variety of female forms in a story that ends in a sexually explicit fashion.

While both of these comics are adult material, I can't see any reasonable adult viewing those images and convicting them as depictions of child sex abuse. Particularly in the context of the expert testimony we were prepared to deploy.

All the way around, I think it was a case that was unlikely to break in the prosecutor's favor. I know Ryan and Michael held a hard line that they would not agree to any criminal charge, and Michael did a terrific job managing that. Although I believe the defense would have prevailed at trial, I wholeheartedly respect Ryan's decision to accept the regulatory charge, because it closed the matter without the risks inherent in a trial where the consequences of conviction are a mandatory minimum sentence of one year in prison and registering as a sex offender.

SPURGEON: Where do you think this leaves us in terms of potential future prosecutions of its type? Will this encourage or discourage such proceedings?

BROWNSTEIN: Unfortunately, I don't think this outcome changes anything in terms of the risks inherent in crossing borders with comics. Nor do I think it diminishes the risks of people being prosecuted under child pornography laws for possession of comic book art, because no binding precedent was set at trial. Even if a good verdict were reached here, it wouldn't be binding here in the States. At best it would provide guidance, but it would still be a battle to be fought and won in an American court.

Ultimately, I think these issues are still very much in play both internationally, and here in the United States. And I think that they're an easy get for prosecutors because individuals tend to be automatically predisposed to assume guilt wherever an allegation of child pornography is made. Even in this case, where the charges against Ryan were dropped, and he's been cleared of any wrongdoing, you're still seeing a lot of internet comments suggesting that he must have possessed some form of child pornography. Well, no, he didn't. If he did, there's not a reality in which the Crown wouldn't have proceeded to trial.

People aren't rational about this issue. And that makes it dangerous, potent, and very much in play. If you factor in the current cultural climate, where, just today, Rick Santorum pledged to increase prosecution of laws against the distribution of pornography if elected President, it's not hard to see how cases against comics may be about to get worse rather than better.

SPURGEON: This was a different case for you; are you happy with the case as a sort of first time out in this area? Do you think your coordination and individual contributions will improve if a similar case crops up in the future.

BROWNSTEIN: I think this was a good result, and a win, because ultimately Ryan was cleared of any criminal wrongdoing. It wasn't the precedent-influencing outcome that one always hopes to achieve when taking on a case like this, but those cases are always rare. It was a first for us, becoming involved in an international case involving an American citizen, and I'm pleased that we were able to become involved. It was the right moral thing to do, and it raises extremely important legal concerns that are going to be ongoing, which means it was right for our mission. While I sincerely hope that it is never necessary for us to become involved in a case like this again, I think we were able to sort out important precedent questions as an organization, and are in the early stages of building a much better network for international coordination on important Free Expression related matters. So, yes, it made us smarter, it expanded our network, and that always makes us better able to coordinate our defense efforts.

imageSPURGEON: What would you have the wider comics community take away from the case and its outcome?

BROWNSTEIN: This is one of those rare moments where Benjamin Franklin's famous quote, "We must, indeed, all hang together, or most assuredly we shall all hang separately," is the most potent and accurate assessment of our current situation. Even today I saw a lot of discussion that it's okay for authorities to prosecute the really icky stuff. But when you look at the actual images Ryan was prosecuted for, it's clear that the authorities have a much lower threshold for what constitutes the really icky stuff than the average person who's ready to sell their fellow comic book reader, retailer or artist down the river.

If Ryan were convicted for possessing that Moe 48 Positions, what chance does the average indy cartoonist going to TCAF have of carrying stuff into the show without hassle, much less fear of arrest? What hope does a retailer who orders from the adult order form for his store have when that stuff is in his internet cache? We're a field that thrives on the power of the static image, and while our communities have our own understandings of what's acceptable and what's taboo, our understanding may not always square with that of local law enforcement. I'm not saying these things to stir up fear, I'm saying that equivocating about what kind of censorship is acceptable to us, as individuals, creates cracks in our armor that can bring censorship down on our field as a whole.

Ryan's story proves that there's absolutely no profit in adopting a posture indicating that "censoring that stuff I don't like is okay," because taste isn't what laws are built on, precedent is, and the precedent here could have hurt the readers and makers of comics from all over the world in a serious way.

Now is the time to hang together, to advance broader understanding about our content, and to take a firm position that upholds its merit as important free expression. And that's the work we at the Fund are putting our back into right now.

posted 6:10 am PST | Permalink

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