Article 10: Naked Truth

A Georgia retailer faces prosecution for giving away a comic containing nudity. On the face of it, it looks like another case of stupid law, but as Paul O'Brien discovers, it may not be the letter of the law that's at fault.
14 February 2005

It's Valentine's Day, so what better subject to write about than nudity? Nudity and law. Matters dear to my heart.

This is, of course, a column about the latest cause celebre for the Comic Book Legal Defense Fund. The story has been widely reported, but let's run over it quickly for the benefit of any latecomers. Gordon Lee owns Legends, a comic store in Rome, Georgia. Last Hallowe'en, he had his staff giving away surplus comics to the kiddies. By mistake, one of the books that made it into the giveaway pile was ALTERNATIVE COMICS #2.

On any view, it shouldn't have been there because it's labelled as a mature readers book. Nobody really has a problem with that. However, ALTERNATIVE COMICS #2 doesn't contain anything that you might normally regard as obscene or offensive. It's just not really for kids. Let's face it, it's unlikely that the kiddiewinks of Rome, Georgia were ever going to be enthralled by a promotional excerpt from Nick Bertozzi's THE SALON, showing the first meeting between Georges Braque and Pablo Picasso.

Unfortunately, Mr Picasso chose to conduct that meeting naked, and Mr Bertozzi has scandalously chosen to reflect that in his rendition. There's no sexual content other than the fact that Picasso is naked, but that didn't stop the parents of the lucky recipient from complaining to the authorities. Lee is now being prosecuted on charges of "distributing obscene material to a minor" and, more remarkably, "distributing material depicting nudity".

Perhaps not surprisingly, this has led various commentators to bemoan the idiocy of the Georgian legislature, and question who in their right mind creates a criminal offence of "distributing material depicting nudity." After all, the states of America aren't exactly short on morons with law-making powers. Just look at Virginia, where the lower house actually voted to enact a bill making it a criminal offence to wear low-slung trousers, on the grounds that it was irritating.

True, the bill was promptly killed off by a Senate committee who clearly had rather more brain cells to rub together. But it still cleared the lower house by a margin of 60-34, which suggests that (a) the average Virginian state legislator is thunderously stupid, and (b) the average Virginian voter should pay more attention in future.

When bills that stupid can actually pass a vote, at any level, people can perhaps be forgiven for assuming that the Georgian legislature really is dumb enough to have enacted a law that would criminalise ALTERNATIVE COMICS #2. That's certainly the impression that Peter David (a CBLDF board member) appears to have arrived at, given his outraged commentary on the prosecution:

"Remember how ludicrous it was when John Ashcroft draped cloths over the bare breasts of the statue of justice? ... Gordon is being prosecuted under Georgia law that stems from the same 'human body is evil' thinking. A law so sweeping that the following titles can get retailers arrested and charged with fines and jail time: WATCHMEN. CONTRACT WITH GOD. SANDMAN. ... Any comic book in Georgia depicting nudity of any kind can get you busted. Remember Doctor Manhattan? He'll get you one to three years in Georgia. If these laws are able to withstand constitutional challenge, do you really think there aren't states who would love to adopt them?"

This sort of commentary gives the impression that we're dealing with a remarkably stupid law that is going to have to be challenged on First Amendment grounds. In fact, it's debatable whether the Georgian legislature ever intended to cover this sort of thing at all. Let's consider what the law actually means, before we condemn it as unconstitutional or crassly stupid.

The "distributing material depicting nudity" charge comes from Title 16, Chapter 12, Section 81 of the Georgia Civil Code. The relevant bit is paragraph (a), which says:

"A person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type the following notice:

Notice - The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender."

Now, let's get one thing clear. This is, quite explicitly, a statute dealing with unsolicited distribution. It doesn't stop you selling comics with nudity in them. So you can stop worrying about being busted for selling SANDMAN. Nor, for that matter, does it mean that your mail-order pornography is going to come with great big embarrassing warning labels on it, because that wouldn't be unsolicited either.

The primary focus of the legislation is unsolicited mail. From the look of it, the intended target was pornographic junk mail. And they don't even ban pornographic junk mail, they just require you to put a warning label on it. So when you open your mail in the morning, you at least know that nothing unexpectedly offensive is going to drop out.

Now, it's still certainly arguable that this is a bad law, and drafted too widely. As the CBLDF rightly points out, it would cover review copies, for example. And since nudity per se is not obscene under US law, it's very doubtful whether the Georgians are allowed to include mere nudity in their labelling requirements. Even so, we're dealing with a law that's relatively marginal in its application to comics, and, at its core, has a fairly legitimate target. Let's be fair, it's nowhere near as stupid a law as some people are making out.

The problem here comes not from the intentions of the people who passed the law, but from the way the prosecutors are trying to apply it. It's not restricted to mail; there's also the line "otherwise unsolicited causes to be delivered." Fair enough - otherwise you could just deliver the junk mail yourself. More debatable is whether handing out comics to trick-or-treaters (by mistake) qualifies as unsolicited distribution.

I suppose it's arguable that it comes within the letter of the law, although I suspect the draftsman intended something more analogous to the postal service, and it certainly strikes me as outside the spirit of the law. In the somewhat freakish "accidental giveaway" circumstances of this case, it might well be necessary to fall back on first amendment arguments to escape the legislation.

Oh, yeah. The other charge - obscenity. God only knows what the prosecutors are thinking there. As near as I can make out, the definition of obscenity for the purposes of Georgian state law comes from section 16-12-80, para (b) of the state code. That paragraph defines "obscenity" at some length, and plainly does not cover mere nudity.

In fact, even sexual conduct isn't covered unless it's shown "in a patently offensive way", and the whole thing is subject to a defence of literary and artistic merit. To say the least, it's difficult to see how ALTERNATIVE COMICS #2 falls foul of this definition, and one wonders whether the Georgian prosecutors are actually reading these statutes before drafting their obscenity charges.

None of which is to suggest that the CBLDF shouldn't be taking the case, by the way. Sensible laws badly applied can be just as much of a threat to free speech as laws that were stupid to start with. The Georgian prosecutors are being ludicrously trigger-happy in pursuing this case at all, and whether the problem lies with the law itself or with the way its being applied, it's all fair game for the CBLDF in my book. This is what the CBLDF is there for. And the issue of having to label review copies is a genuine one, which does raise fair questions about whether the statute is overbroad.

Still, if we're going to criticise the Georgians, we should at least be clear about what they've done wrong.

Paul O'Brien is the author of the weekly X-AXIS comics review.

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