Comic Threat

Michael Diana is not the boy next door, and his comics are brutal. But does the court have the right to throw him in jail and seize his drawings?

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Michael Christopher Diana probably wouldn’t be your first choice to date your daughter or sister.

He has tattoos and long, stringy hair, likes the band Nine Inch Nails, sports a pronounced anarchist attitude, and fits most people’s definition of, well, creepy.

And Diana gets into trouble. Recently, he was arrested in Orlando when he tried to pay for a horse-and-carriage ride with a $1 bill doctored to look like a $20 bill. His attorney says Diana was unaware of the forgery and charges were dropped when Diana agreed to a pretrial probation program.

But Diana’s claim to fame is that he likes to draw. And the brutal images that come forth when he puts pen to paper have made the authorities in Pinellas County, Fla., want to lock him up: They tested his blood to see if he was a serial killer; they jailed him without bail while he awaited sentencing; they fined him $3,000.

What sent up red flags in the civil liberties community, however, was an extraordinary part of his probation sentence. The judge ruled that Diana’s thinking had to be rehabilitated. To this end, he ordered that all Diana’s personal papers be subject to unannounced searches. Anything Diana draws or any private thoughts he might want to write down may be seized without a warrant.

After working shifts at his family’s convenience store in Largo, Fla., Diana liked to sit alone in his bedroom at his father’s house and draw. The sessions often lasted until 3 or 4 a.m., and what emerged were brutal images incorporating penises, breasts, excrement, blood, and intestines, not to mention appendages and body cavities that just don’t exist in the real world.

About six years ago, Diana started putting his harsher work together in a comic book ‘zine he called “Boiled Angel,” which he distributed to about 300 subscribers across the United States and abroad.

Some drawings in “Boiled Angel” stood alone, and others were strung together in story lines:

A A child is sodomized by his adoptive father, who is killed by the family dog. The boy thinks he’s finally free until the dog picks up where the dad left off.

A A man looks at a pretty woman. In the next frameaa montageathe man has the look of a psychopath and is surrounded by slivers of abstract images, including a nipple being sliced off by a knife.

A A youngster goes to church looking for a priest and gets semen squirted in his face by a giant penis. The child grows up emotionally disturbed, taking drugs and shoving a crucifix up his rectum.

Three years ago, one of the comics found its way into the hands of a California law enforcement officer. Parts of it reminded him of the then-unsolved Gainesville student murders. The book was forwarded to Florida, where state authorities sought out Diana and asked him for a blood sample to see if he was the killer. After laboratory tests dismissed him as a suspect, his comic was passed to the Pinellas County Sheriff’s Office, which charged Diana under a Florida obscenity law.

Last March, he went on trial in Pinellas County court. The Comic Book Legal Defense Fund paid for Diana’s defense by Tampa attorney Luke Lirot. Six citizens minding their own business around sleepy, retirement-oriented St. Petersburg were summoned to a jury box to look at penises and mutilation. “They were visibly shakenavisibly disgusted,” Lirot said.

It’s difficult to blame them. Diana isn’t the boy next door; his artistic tastes, when compared to the mainstream, are completely off the meter. Whether it’s death and excrement, or simply shapes that make no sense, most of Diana’s material leaves viewers wondering, “What’s wrong with this kid?”

Diana says he wants to open people’s eyes by shocking them. For citizens who aren’t seeking to jolt themselves–who are simply showing up at the courthouse to fulfill a civic duty–it’s just plain offensive.

American courts have decided that rights of free expression cover a broad range of filth, hate, and violence. The sole trip wire that slams the First Amendment shut is sexually arousing material. In other words, you can be as disgusting and violent as you want, as long as nobody gets turned on.

As Pinellas County Assistant State Attorney Stuart Baggish, who prosecuted the Diana case, explains, a teen-slasher movie available at a video store would not be ruled obscene, because “it portrays violence in a gross way, but it does not portray sex in a patently offensive way.”

According to the 1973 U.S. Supreme Court ruling in Miller v. California, material must pass three legal tests to be judged obscene. First, it must appeal to the “average” prurient interest in sex. Second, it must portray sex in a patently offensive manner. And third, it must have no serious artistic, literary, political, or scientific value. If any of the three criteria don’t apply, the material is not obscene.

In Diana’s case, the first hurdle was especially tricky. The drawings might repulse jurors, but get them horny?

The prosecution was helped by the 1966 case Mishkin v. New York, which involved the distribution of sadomasochistic pornography. The case set a precedent that material appealing to a deviant sex market need not arouse average viewers. (A humorous attempt to use the Mishkin exception took place in 1988, when Alabama prosecutors tried to prove the obscenity of a bumper sticker that read: “How’s my driving? Call 1-800-EAT-SHIT!” The state brought in medical textbooks describing coprophagia and coprolalia–the sexual enjoyments of eating excrement and uttering obscenities–and used as expert witness a local professor who taught a course on abnormal sexuality. The state lost.)

Prosecutor Baggish used a similar strategy against Michael Diana, bringing in Tampa psychologist Sidney Merin as a state witness. Merin said that people “of questionable personality strengths” could be aroused by the comic book.

In an antiseptic legal world, Diana probably would have won. His cartoons may be gory and repulsive, but it’s hard to imagine them arousing anyone. But as in many obscenity cases, both sides often abandoned points of law in favor of long- distance detours through legally irrelevant emotional territory.

Defense attorney Lirot emphasized an often obscured and sometimes contradictory element in Diana’s work–his concern about “victimization.” Prosecutor Baggish told the jurors that if Diana weren’t stopped he might become a mass murderer. (After the trial Baggish pointed out in an interview that serial killer Ted Bundy had blamed pornography for his crimes: “People said, aOh, my God, why didn’t somebody do something about it?’ In this case somebody did something about it.”)

Letters poured into the court from religious and family values groups such as the American Family Association and the Concerned Women for America. “The pictures . . . serve as a reminder that there will always be individuals that pervert and twist the meaning of freedom,” wrote the Concerned Women’s area representative. “The production of obscenity and violence against women and children is not freedom, but one step away from destruction.”

In his summary, Baggish told the jurors that Pinellas County didn’t have to accept “what is acceptable in the bathhouses of San Francisco and . . . the crack alleys of New York.”

The jury deliberated for 90 minutes.


Ironically, what may have tipped the scales against Diana was the very political content that should have saved him. The overall message of “Boiled Angel” is one big spit at authority. It’s legitimate speech under the First Amendment, but not very popular in Pinellas County.

Most pronounced is the comic book’s virulent anti-Christian message, aimed particularly at the Roman Catholic Church. There are assaults on the Church over pedophile priests, as well as a lot of crosses (one with cartoon poop on it). There’s a drawing of two eggs frying on top of a Bible, with the caption: This is your brain on religion.

According to Robyn Blumner, executive director of the American Civil Liberties Union of Florida, that political message should have saved “Boiled Angel” from an obscenity conviction. “But in this case,” she says, “the very political message was inflammatory and helped convict Michael Diana.”

Judge Walter Fullerton ordered Diana held in jail until sentencing. What made it peculiar was that he ordered him held without bail–the norm for murderers and cocaine kingpins. Diana was only convicted of misdemeanors.

“I felt incarceration in jail was part of the sentence, so why not begin?” says Fullerton. “He learned some good lessons.”

At sentencing, Baggish asked the judge to incarcerate Diana for two years, despite a prison-space crisis in Florida that has resulted in the ultra-early release of violent criminals. Fullerton instead chose three years of supervised probation. Diana would have to pay fines, do community service, and avoid contact with minors. But there was still one more catch.

Fullerton ordered Diana to follow a state-supervised program to rehabilitate his thinking. Diana was required to undergo psychiatric evaluation and take an ethics-in-journalism class. Finally, Diana was to submit to unannounced, warrantless searches of his personal papers by the police and deputized probation officers from the Salvation Army. Any drawings, any letters to family, any feelings Diana might want to keep in a diary could be seized.

Although random searches during probation are generally imposed only in drug and weapons cases, Baggish says it was natural to extend such searches to help reform an obscenity offender. “Treatment is the most important part of the sentence,” he says. Unannounced searches are needed to force Diana “to refrain in a rehabilitative vein from this conduct. To cure the psychological maladjustment, [it’s necessary] to catch him in his true state.”

It’s not difficult to see why Diana’s art might prompt questions about his mental health. But when is it appropriate for the government to decide that someone’s thinking needs to be rehabilitated?

“I don’t know of any time when such monitoring has been used on an artist,” says the ACLU’s Blumner. “It reminds you of mind control. The fact that the state doesn’t like Michael Diana’s attitude and will send him to experts and conduct searches is like legalized lobotomy.”

There have been about half-a-dozen comic book obscenity cases in the United States, but most involved store owners–and nobody was ever ordered to stop drawing, says Susan Alston of the Comic Book Legal Defense Fund in Northampton, Mass. “Diana is definitely the first artist who’s been banned as part of his sentence.”

“That’s absolutely illegal,” says Richard Wilson, a national officer of the First Amendment Lawyers Association. He explained that the judge’s sentencing order of “no . . . creation of obscenity (drawings, writings)” amounted to unconstitutional prior restraint.

It’s a sticky matter debating whether something is art. As the late shock- comedian Lenny Bruce said of obscenity cases, the expression often is art and the lawyers are really debating whether it’s good or bad art. The jury is put in the position of punishing untalented artists.

And whether or not Diana has any talent is certainly debatable. Baggish describes Diana’s work as “a kick in the head. It lacks any serious–underline serious–artistic or literary value.”

“The jury made the decision; I didn’t,” says Judge Fullerton. “But if you looked at it, you wouldn’t question their verdict.”

Diana has a different view: “They asked the jurors what their idea of art was, and one of them said aneedlepoint.'”

Diana’s case is now on appeal, and the conditions of his probation are suspended pending a ruling by the circuit court, possibly as early as February. In a virtually unheard-of ruling, the Pinellas County appeals judge rejected a routine request by the American Civil Liberties Union to file a friend-of-the-court legal brief in the case.

At least for now, the excitement has died down. Diana is left sitting in his father’s convenience store, wondering whether he’ll have to resume paying off his $3,000 fine, chipping away at his 1,248 hours of community service, and visiting a psychiatrist.

“They want me to get mental help so I’ll change,” says Diana, “and I don’t see how I could, because there’s nothing wrong with me.”

Thus far, Diana hasn’t changed. He and his fiance Suzy Smith (whose local cable show was canceled after she aired a video clip of punk rocker GG Allin defecating on stage) recently posed naked for an underground ‘zine. In the accompanying interview, Diana says he wants “to stay alive and try to cause trouble through my art or whatever I do, and hopefully corrupt some other people and make people realize they have the right to do whatever it is they’re doing.” Diana has even started work on a new comic called “Superfly.”

Not far from the courthouse, in another part of Pinellas County, are other disturbing paintings and drawings. Although more complex and artfully rendered than Diana’s cartoons, they share a number of thematic similarities.

The paintings include penises and breasts and disfigured buttocks. A severed head. Blood coming out of an eye socket and from anuses. One painting, “The Profanation of the Host,” even mixes group homosexual activity with religious images.

But this collection of work is neither hidden nor under attack. On the contrary, it is proudly publicized as one of St. Petersburg’s cultural crown jewels: the Salvador Dali Museum.

Sean Henry is a writer in Tampa, Fla.


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