Legal Analysis Of Obscenity In Pope V. Illinois And Legal Issues In DC Comics' Cover Concept For The Dark Knight Gets His Cat

Introduction of the case

Part 1:

Do a casenotea more concise shorter version of what you did for your recent CA 2 and be detailed on the Analysis of the courts holding, reasoning, whether it was groundbreaking, etc. Use whichever of the two formats you are comfortable (see casenote format in instructions to previous assignment, or as prescribed and in the syllabus project description section) of the following case:

Pope v. Illinois.

(You find it, cite it properly—famous case decided in the 1980's. That's the only hint you get.)

Part 2:

First-and this is very important—look at the attached artwork.

Second- here's the hypothetical-- As always with hypo's, this is reality-based but not a real problem. Do not invent material facts or "bring in" other facts from something "real" you perceive. deal with the hypo as is.

You are a paralegal and law clerk at DC Comics' Los Angeles office, working on clearances and other legal issues relating to media such as film, TV or computer games. One of the in-house attorneys, Liz Goldman at the New York HQ, calls you on company WebEx so she can talk digitally face-to-face (despite the 3 hour time difference) and says:

The artwork (below) is a cover concept for a comic --basically a digital/e-book with accompanying music soundtrack and lines read by actors tracking the dialog in the balloons in each panel (the reader need only tap a panel and the drawn/written dialog and certain sound effects will be audible. This content will to be sold to Kindle and Samsung Galaxy users through Amazon, and iPad/iPhone users through iTunes.

All copyrighted artwork for the project was licensed in a deal last week to TRON Gaming [a made-up name for this assignment, pretend] which is 40% owned by DC’s parent company, Time-Warner. The title of the comic and game will be: "The Dark Knight Gets his Cat" The game, not the animated comic, will carry a mature warning label per the gaming industry’s voluntary agreements from the 1990's and whatever labeling conventions exist today (research that), in downloadable or tangible retail (i.e. from Game Stop, Best Buy, etc.) form for PS4, XBox, and other platforms.
Liz looks worried on your desktop screen. She says, "The title worries me because the whole thing is rife with that double-entendre. The Cover Art (based on the artwork attached) might be ok, but we have kids trying to buy and download this comic and playing the game.â€Â

She shows you panels from the comic and screen shots of the game. There is indeed nudity, but it is back and side; Bruce Wayne and Selina Kyle indeed have sex, and there are panels/segment of them in their customs, but strategically ripped to expose body parts and then sex as Batman and Catwoman. There are depictions of child abuse and undressed children, leering pedophilic gangsters (the plot centers on a vicious ring of international child/sex-slave traffickers headed by the Penguin, and Catwoman decides to help the Batman).

She continues, “Not to mention there's graphic violence in both. There are bullet-ridden bodies, teeth and noses broken. Blood, blood, blood!"

"In other words," you interrupt, "how real violence and wounds and fear looks?"

"Yeah, but it all does come back to the sex and language. They use explicit profanity. Then, there the double entendre issue with cat. I heard a rumor Walmart won carry the game. Loosing Wal-Mart would be a big problem. Still, it would be a boon to Game Stop and Best Buy, Target etc.

You reply, sipping your Southern California triple espresso mocha latte, sure the bosses here and in Manhattan are worried nonetheless, right?

"Wrong!" She tells you the editors, producers and artists are gung-ho and approved the launch. They paid big money to artists, game developers and big name Hollywood actors to do voice-overs for the comic. Time-Warner, which through DC owns all the characters outright (unlike Marvel which has licensed them some out to Sony, otherwise they are owned by Disney for film) wants to make a big splash. They—and PS, Xbox, Apple, Amazon—anticipate huge worldwide, not just U.S., sales. “Recall the Japanese have been looking at explicit manga cartoons for years. Here in America, fans since the 1960's, even folks marginally familiar with the characters, have eagerly wanted to see Batman and Catwoman hook up for real! There is a lot of pressure to launch, accordingly, and TRON CEO has already been on CNBC (with DC executives), teasing and touting this as one of its new game-changing games for 2016.

Then, Liz asks you to prepare a memo, citing cases, statutes (all in proper citation form!) articles etc, to her, interweaving law and fact, and walking her through the potential legal pitfalls and potential issues and defenses etc. and looking at this artwork and what she told you in the worst possible light--associated with going ahead with this digital comic and the game. She is interested in, for example, obscenity, indecency and porn--both generally in digital and print media and specifically with respect to children/minors. She's heard of the old "Comics Code" but says that's a minor issue. She heard of "panderingâ€Â but is not sure itâ an issue. Shes also heard of a case called Pope v. Illinois, and wonders if it applies. Finally she worried about the FCC

so, riddle me this Bat-fans--what do you tell her?

The case Richard Pope and Charles Morrison v Illinois [1987] US 497 was heard before the State Appellate Court. Glenn A. Stanko was the advocate for the petitioner and Sally Louise Dilgart is the advocate for the respondent.

In 1983, July 21, the police detective Illinois in Rockford, bought magazines from Charles Morrison and Richard Pope who were the attendants in an adult bookstore. Both of them were charged for selling obscene magazines under the Illinois’s obscenity statute. Both Morrison and Pope moved the court to dismiss the charges on the ground that the obscenity statute was unconstitutional under the Fourteenth and the First Amendment. The amendments did not require that the work value should be judged as per objective basis whereas the judgment was made on contemporary community standards ((Chute, 2016).

The Trial courts denied the appeals and instructed the juries to decide whether the adults in Illinois would observe the material in the magazines as obscene. On appeal made by Pope and Morrison, the Illinois Appellate Court, Second District, agreed with the ruling made by the lower courts. However, the Supreme Court dissented and rejected the review.

The case of Pope v Illinois [1987] expands the standards set by the case Miller v California and determines whether a work has artistic, literary, political or scientific value in obscenity cases. In 1973, the Supreme Court decided Miller v California and had established three-prong test for deciding whether any particular material was obscene. The test asks whether any reasonable person would find artistic, literary, political or scientific material in question to be obscene (Farrant, 2017). Therefore, obscenity cases deals with value and it is not about taste. The test established in the case was to determine whether any work describes sexual conduct in a offensive manner and whether the work of the material lacked ‘serious literary, artistic, scientific or potential value’.

The court held that it is important to determine whether a reasonable person would find any serious artistic, literary, political or scientific value in any obscene material when the entire the material is taken into consideration. The Supreme Court held while determining the issue in the Pope’s case that it is important to apply an objective national standard which any reasonable person would use to determine the value in question. The case has established the principle that in order to assess whether any material is obscene, the value of the material should be determined based on whether the average American consider the work value to be obscene instead of assessing the work value of the material based on personal opinion of the Americans.

Consequently, the use of national reasonable person standard would lead to an outcome that is distinct from using a local standard to assess whether the material is obscene. Justice Scalia agreed to the fact that the test established in the Miller’s test was required to be adjudicated on the basis of whether any reasonable person would find the material valuable. Justice Harry A. Blackmun partially dissented with the judgment on the ground that the ‘harmless error’ analysis proposed by the majority was inappropriate. However, the opinion of the majority with respect to the protection of a work from being judged only by the value of the work was appropriate (Hoppeler, Rippl & Schweighauser, 2013).

Key facts of the case

Justice John Paul Stevens dissented with the judgment with respect to the ground of unconstitutionality raised by Pope and Morrison. He argued that the error in this case was harmful as the jury assessed their guilt based on unconstitutional directions. He further argued that the majority opinion reflected clarification of the definition of the term ‘obscenity’ ho believed that the view of a majority on the value of material work was more valuable than the view of minority with respect to the work material value.

When a jury is directed to assume malice from the arguments presented regarding the facts of the case, the jury is required to find the existence of the facts, agreeing unanimously beyond any reasonable doubt. In the present case, the jurors were not precluded from having regards to the question of value They were instructed to find that the magazines sold by the petitioners had no social value tha(Grey, 2015). t could be redeemed in order to establish that the magazines were obscene. Although this case has set the new standard for the cases related to obscenity, it is still vague. This is because there are various definitions of the phrase ‘reasonable person’ and the concept of ‘serious value’ is vague because of the several elements that vary from one’s background to another’s background.

Conclusion:

The State Appellate confirmed the convictions of both the petitioners by rejecting their contention on the ground that the issue related to value shall be determined objectively instead of being determined on the basis of contemporary community standards. In this case, the Illinois Appellate Court did not consider the harmless-error related issues which must be determined by the court.

To

Liz Goldman

WebEx

New York, HQ

Respected Ma’am,

I have prepared a memorandum entailing all the relevant cases, laws and other information related to your queries regarding the publication of the batman comic and games. You were keen to know whether the inclusion of obscenity, indecency and porn would augment any issue regarding the publication of the comic. The following memorandum includes all the related information about the publication of the comic.

1. The obscenity law in the United States deals with suppression or regulation of the concept of obscenity. The concept of obscenity includes censorship and pornography but it also raises issues of press and freedom of speech, which is otherwise safeguarded by the First Amendment to the United States Constitution (Farrant, 2017).
2. In the United States, there is a violation of Federallaw to air any program that is obscene or indecent or if the program includes profane language. The Federal Communications Commission (FCC) has been conferred with the administrative responsibility to enforce these laws. In the event, if any such program contains any indecent, obscene or profane material, the FCC is empowered to impose a financial forfeiture, revocation of a station license or may issue a warning against the person responsible for publishing such program (Burchill, 2015).
3. In the case of Miller v California, the Supreme Court has established a three prolonged test, which should be applied to determine whether any material contains obscene content. Since obscene material is not safeguarded by the First Amendment to the Constitution and cannot be broadcasted at any time. Hence, the Supreme Court has established the test in the Miller’s case.

• An average person by using the contemporary community standards  must opine that a material, as a whole, appeals to the prurient interest;
• The material when taken as a whole must not have artistic, political, literary or scientific value;
• The content of the material must describe or depict in an offensive way any form of sexual conduct that is specifically defined by the law in force;

4. The FCC has defined broadcast indecency as any material or language that describes in a patently offensive way as measured by contemporary community standards for the broadcast medium (Greenberg, 2014). There are indecent programs containing patently offensive sexual material which may not be considered as obscenity;
5. The courts have established that since the First Amendment safeguards the indecent material, hence it cannot be prohibited completely. However, the broadcasting of such indecent material shall be subjected to restriction and are permitted to be aired during a particular time of the day. This is to avert the risk that children may be in the audience that such programs is permitted to air during particular time of the day;
6. The FCC considers ‘obscenity’ different from ‘ indecency’ and although the concept of indecency may be safeguarded under the Constitution but it is still inappropriate and offensive in majority of cases.
7. The Comics Code of Authority (CCA) was established as a substitute to government regulation to permit the comic publishers to the self-regulate the content of comic books in the United States (Bongco, 2014). The CCA prohibits excessive violence related scenes such as scenes including excessive and unnecessary knife or gunplay, brutal torture  and physical agony;
8. Profanity, vulgarity, obscene words or symbols that have acquired undesirable meanings are forbidden under the CCA;
9. The code completely prohibits nudity in any form and similarly indecent or undue exposure is prohibited as well.
10. The image of the females should be drawn realistically without exaggerating any physical qualities of the females; it further prohibits the promotion of clothed figures that is presented in such a way which is contrary as well as offensive to good morals or taste;
11. Any scene that depicts or describes or portrays excessive bloodshed, gruesome crimes, lust, horror shall not be permitted;
12. Cartoons and comics have always been part of American culture and since its formation, comics and cartoons have been subjected to censorship, controversy, litigation and legislation. This is because the comics and cartoons have often been found to be a threat to the society and a significant cause of juvenile delinquency owing to the content of such comics and cartoons which are indecent, obscene and scandalous.
13. However, the Detective comics (DC comics) have been publishing comics such as Batman, superman and wonder woman which were subjected to investigation by the Senate Judiciary Committee which was of the opinion that such superman types of comics tends to force and super force. These comics present our world in a way where it is depicted as a place that that encourages hate, destruction and violence, which is bad for the children, in particular (Steel, 2014).
14. Some psychiatrists have stated that  detective and crime comics acts as an agent with harmful potentialities that leads to mass conditioning of children with different effects in individual child’s case (Sheerin, 2016).  however, this notion has been shuddered by the modern social scientists who notes that the concept of the DC comics have been considered to be harmful for the children, in particular, based on the logic that children gain knowledge and delinquent attitude from reading the comics which in reality, not the only reason why children acquire delinquent behavior.
15. After the introduction of the CCA, it was universally accepted until the implementation of the Free Speech Movement launched in Berkeley in 1965, this invoked the comic artists, writers embrace the counter culture, and they commenced self-publishing of black and white comics in contrary to the CCA code (Chute, 2016).
16. In Castillo v Texas (79 S.W. 3d 817 (Tex. 2002), the cover of the book depicted a nude female. However, it was argued that the book had a warning label that it was absolutely not for children but the detective considered the content of the book to be obscene. But the counsel had established that although the content of the book included sexually explicit illustrations, it represented Japanese manga and the themes found in the entire book-series had artistic and literary merit. This establishes that the content of the book satisfied one of the prolonged tests that was established in the Miller’s case which proves that the content of the book was not obscene.
17. In case of the comic you are keen to publish, might face some legal issues with respect to the pornography content in the comic under the FCC rules. However, it is important to establish that the content of the book meets the prolonged tests established in the Millers case. The entire comics must not depict lack of serious literary, artistic or scientific value. The gross violence scenes and the sexual postures and child pornography within the comics might becomes subjected to censorship that is stipulated under the First Amendment of the United States. Hence, it is better to preclude such scenes to be able to pass the prolonged tests.

Reference:

Bongco, M. (2014). Reading comics: Language, culture, and the concept of the superhero in comic books. Routledge.

Burchill, J. (2015). Dick Tracy gets smacked down: comic crimes in Manitoba. Manitoba History, (77), 28-36.

Castillo v Texas (79 S.W. 3d 817 (Tex. 2002)

Chute, H. L. (2016). Disaster Drawn: Visual Witness, Comics, and Documentary Form. Harvard University Press.

Duncan, R., Smith, M. J., & Levitz, P. (2015). The power of comics: History, form, and culture. Bloomsbury Publishing.

Farrant, F. (2017). Comics and the Gothic. In Crime, Prisons and Viscous Culture (pp. 103-124). Palgrave Macmillan UK.

Greenberg, M. H. (2014). Comic art, Creativity and the Law. Edward Elgar Publishing.

Grey, H. (2015). Comic Art, Creativity and the Law.

Haapio, H., Plewe, D. A., & deRooy, R. (2017). Contract Continuum: From Text to Images, Comics, and Code.

Hoppeler, S., Rippl, G., & Schweighauser, P. (2013). Continuity in Comic Books and Comic Book Continuity: Serialized US-American Comic Books of the 1980s (Doctoral dissertation, University of Bern).

Miller v California 413 U.S. 15

Morrison v Illinois [1987] US 497

Sheerin, J. B. (2016). Censorship in Contemporary Society. The Catholic Lawyer, 3(4), 4.

Stallings, J. (2014). The gathings committee: Censorship, society, and paperback literature in the 1950s (Doctoral dissertation, University of Arkansas at Little Rock).

Steel, C. M. (2014). Digital child pornography: A practical guide for investigators. Lily Shiba Press.