It’s been brought to my attention by multiple sources that even if “virtual kiddie porn” as “defined” by recent attempts at anti-porn legislation is no longer a concern due to the intervention of the Supreme Court, the less extreme but still serious charge of obscenity can be levelled. Tokyopop doesn’t necessarily have to worry about ending up like Gary Glitter, but if an ambitious district attorney in a Southern state gets ahold of Battle Royale #3, they’re still likely to be in trouble. And the penalties can be astoundingly severe: Let’s all pause to remember Mike Diana, convicted of obscenity and ordered to be subject to random searches of his property to ensure that he’s no longer drawing anything.
It’s situations like this that make you wonder about the wisdom of allowing for “community standards” to decide important civil-liberties questions. The argument has been made, somewhat convincingly, that the ability for states and other, smaller jurisdictions to decide for themselves on issues such as gay marriage is ultimately good, because it permits for advancements in localized areas even if the country at large isn’t ready for it. This way, we can avoid forcing the issue down unwilling communities’ throats, which might only cause them to pass stringent measures against that advancement. On the other hand, look at the civil rights movement of the 1960s: The federal government took matters into its own hands because the “community standard” in Southern states was simply unacceptable, states’ rights be damned. The unwilligness of SCOTUS to rule substantively on what constitutes obscene speech or art is probably a good thing if you live in New York or San Francisco, but not so great if you live in Smalltown U.S.A.; their decision would likely but a damper on some products available in liberal communities, but open up a great deal more freedom for conservative ones. It’s a genuine quandary, and one which comics, already an interstitial, neither-here-nor-there medium in terms of publicly viewed artistic merit, will be tangled up with for some time to come.