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a bad precedent: Texas v. Castillo

It started in 1999.

When C.A. Reynerson walked into Keith's Comics in September 1999, it was clear he wasn't looking forward to catching up on the action in the second installment of the anime comic Demon Beast Invasion: The Fallen. He was looking for a case.

Reynerson found what he was looking for in Demon Beast: The book was in the store's adult section, a spot generally more of a haven for violent comics rather than sexually explicit ones.

He purchased the book from 26 year-old Jesus Castillo, the store's manager.

In 2000, the police came to Keith's Comics and arrested Castillo. They didn't tell Castillo exactly what he was being arrested for. They took him downtown.

Eventually, he was charged with obscenity.

Keith's Comics had already been in touch with the Comic Book Legal Defense Fund (CBLDF) before this situation took place.

In a 2002 interview with Newsarama, Castillo said:

Well, we had heard rumblings that the store had been listed in a school newsletter that said Keith’s Comics was to be avoided. When Keith found out about that he called the Comic Book Legal Defense Fund and faxed over the paper. So we got involved even before I was arrested. It must have been a year before I got arrested. So I found out that maybe they were investigating us through that time and finally I was arrested with the charges they wanted.

Obviously, because a second charge of obscenity came down:

David Little, PTA vice president of the nearby Stonewall Jackson Elementary School, bought a similar Demon Invasion book (Legend of the Overfiend) and sent it to Mayor Pro Tem Mary Poss, who forwarded it to the police. Charges were again filed against Castillo.

Castillo was eventually convicted by a jury of the obscenity charge.

In an argument that sets the common view of comics back a good thirty years, the Texas state prosecutor secured a guilty verdict with a closing argument in which she said, “I don’t care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. … We’re here to get this off the shelf.”

The comic book in reference was in the adult part of the store. It was sold to an adult, by an adult.

The theory that comic books are strictly for kids is ridiculous. Anime, manga and the more violent of comic titles are not marketed to children. I don't see pitches on tv's or magazines saying "Hey, kids! Tell your mom to buy you the new fantastic issue of 100 Bullets!"

The CBLDF decided to appeal.

And now, the Supreme Court has ruled that they will not hear Castillo's case.

Texas did drop the second obscenity count, but the first still stands and they don't want to hear anymore of it.

Appealing to the U.S. Supreme Court was the last chance for a reversal of Castillo’s conviction, and the striking down of a dangerous precedent for comics shop owners across the country.

And a dangerous precedent for retailers of any kind of reading material. Where will prosecutors and overzealous puritans draw the line? Apparently, they have come to the conclusion that we are not, as a people, able to decided what is best for us. They have basically ruled that comics as a genre are worthless, and that adults shouldn't be reading them.

That's not even the scariest part. Think about the implications of this case. Future prosecutors and judges can cite Texas v. Castillo in future cases of this kind, as a precedent has been set that they can follow.

This opens the door for parents, teachers and neighborhood watch zealots to use the law to decide what should be sold and not sold in stores in their towns. It's censorpship by prosecution. Just because you think something is indecent does not mean we all follow by your standards. I, for one, can think for myself. I can walk into a comic book store and decide not to walk into the adult section. Or I can go in there if I want to. I can trust that my children will not be allowed to walk into that section, and I can trust in my parenting to know that they wouldn't even attempt it.

Keep in mind the comic in question, as I said before, was sold to an adult by an adult. I cannot fathom how, in anyone's mind, this can be construed as obscenity. It's the ubiquitous slippery slope from here. First comic books that have sex. Then they'll come for the ones with violence. Then they'll come for the Richie Rich comics for showing our children class warfare. Then they'll come for the skimpy bathing suits Betty and Veronica wear. They'll come for the X-Men and the Ninja Turtles and then they will start on you local Borders or Barnes and Noble, tearing apart the children's area, burning Harry Potter and Goosebumps books.

Sometimes the law works for us and sometimes, especially when it is abused, works against us.

Censorship is an ugly thing. Legalizing censorship is uglier.


You can donate to the Comic Book Legal Defense Fund here. They also have a store where you can purchase t-shirts as well as some nifty Neil Gaiman items.

All links for this story:

Newsarama 1, 2
Dallas Observer
Neil Gaiman


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Man, that sucks! Figures it's here in Texas. I just don't understand how we're getting so far away from live and let live in this country.

OK, while I agree for the most part, lemme say what tempers my outrage here. Why was this prosecuted? That is, I'm asking the question in the "we're all adults here why was this store treated differently, considering the uniquity of pornography?"

My guess is from the prosecutor: The comic book store was across the street from an elementary school. The guy needed to:
(1) move his store to a different part of town
(2) not sell adult comics in that store (or make them catalog, special order, type of thing, from that store), or
(3) get some kind of community buy-in before he sold adult comics. That means meeting with community leaders, showing them your policies on the adult section. When people have some say upfront on controversial topics, they don't get locked into their positions and end up with this kind of BS prosecution.

Of course, this could've just been a cheap prosecution from an ambitious prosecutor who wanted to score some cheap points with the community, too.

I read a little bit more at the defense fund's Web site.

It turns about that Castillo didn't own the store -- he was just a clerk. Since he sold the material to an undercover cop, he was the person prosecuted.

He was fined $4,000 (money was raised and given to him to Castillo for the fine, fortunately) and probation. And the cops had made many purchases until they found something strong enough get an obscenity conviction.

At the defense fund site, they have an interview with Castillo and he doesn't seem too much worse for the wear. Seems like a nice guy, so it's a shame.

BTW, the fact that it's across the street from Stonewall Jackson Elementary School is too ironic.

The "it's near a school!" shrieking is just barely above "but what the chiiiiildren?" as an argument. There's no evidence that any kids even saw the offending comic book, and the store took steps to make sure they didn't.

What the hell is wrong with this prosecutor? And with Texas courts? I'm just... gah! Don't even know what to say. I'm just spluttering with outrage here.

Yet another reason I'm a member of the Comic Book legal Defense Fund.

Isn't it legal to sell adult material to adults? If there were a demonstrated case of sale to minors, at least there would be some connection to the "protect the children" mentality. (With which I disagree)
Also, if there was an objection by the town as to the location of the store, shouldn't the town register the complaint with the owner? There's precedent for that, with adult book stores and other such businesses.

Well this is interesting...

First of all, it was somewhat foolish of them to expect the Supreme Court to hear this case. First of all the obsenity law in Texas - when interpreted correctly - is certainly constitutional, the real purpose of the Supreme Court in the first place. So that leaves them in the position of deciding if they need to step in and correct an injustice to spare someone their rights being violated. In this case, it just isn't worth their effort and they physically cannot address every case like this. We're talking about jail time long since served, I believe, and a paltry $4000 fine that was paid by the CBLDF.

What is at issue is the shameless conduct of the city government there, the DA's office, and the complete MORONS on that jury, not to mention the idiot judges that allowed the conviction to stand.

I looked up the applicable Texas Statute - Chapter 43 - Public Indecency, sections 21,22, and 23. They all ignored expert testimony that showed the work did have artistic value, although section 21 of the statute doesn't make it clear if the definitions of obsenity are connected by an AND or an OR. It seems most likely to be an AND, and therefore, this could not have been obsene.

But then it goes on to say that the offender must know the content and character of the obsene material, which it seems the cashier did not, and really would you expect he would ? That was the basis for the one judge agreeing with the appeal, although in the minority 2-1.

In actuality, this standard applies, regardless of anything. There are no conditions that must be satisfied, such as there are with obsene displays, which would allow for the sale of adult items, segregated in an adult section to adults only. Under this statute it doesn't matter.

Which I guess could be a basis for calling into question the constitutionality of the law. Since I've been in an adult bookstore in Texas, I know for a fact that FAR more "obsene" adult items are sold legally than this comic book. At that point this law - as written - is open to challenge under equal protection, or other 14th ammendment protections against state laws that undermine the US constitution. At question would be, should this person have the right to sell an adult oriented comic book, displayed in an adult's only section of the store, to adults only ? I would say yes. But even if you say no, then how do you justify the selling of far more obsene items in other stores. If it is the proximity to a school, well then get a law regarding such. Otherwise, that violates equal protection laws.

Now, lastly, Troll King, get over you lame PC notions of how the world works. In this country you are free to do whatever you want - within reason - with your property. I think the description in this case puts the comic book store in the right. And given the precautions taken, the burden to "talk" should fall to local gov't and law enforcement to alert the store owner that what they are doing is inappropriate, or insufficient precautions are being taken. Not vice versa.

I suppose we should hold a community committee meeting everytime someone wants to open a business on the property they legally own. Why don't we just have all property and business owned and directed by the state. That would make things so much easier!

I've never been called PC before. Sherard, exactly what is PC about what I was saying?

BTW, I don't necessarily disagree with your legal analysis, except for the correct spelling of the word, "obscene." I'm not a lawyer; I've never been able to make any sense out of the obscenity laws in this country. They frankly seem random. You can get hardcore pornography in almost every hotel room in the country now -- what the hell happened to local community standards. Not to mention the Internet. The law has lagged and now it's a mess.

Also, I looked further into this case. It seems this was a political prosecution. In many cases, you can head off trouble by getting buy-in early in the process -- nip potential problems before they turn into issues where people choose sides.

That is, I was wondering if this was a question of upset neighbors who could've been placated earlier by getting assurances about how children would be protected.

But it seems this wasn't the case. Keith's Comics got screwed because its prosecution satisfied the ambition of local demagogues. At least Castillo got help paying the fine, he didn't go to jail, and Keith's Comics is still in business. And customers can still find the offending comics without much effort online, through catalogs, etc.

And the worst thing is now everybody knows he's an adult who reads comics.

Heh heh. He's an adult and he still reads comics. What a goober.


The notion that I will have a sit-in with community leaders because there might be a hint that I could possibly sell a comic book that someone somewhere might be worried could somehow find it's way into the hands of a child.

You shouldn't have to go out of your way to clear what you are doing with the powers that be. That's why the law is written such that you are innocent until proven guilty. And if someone has a problem they ought to being it to the attention of the store owner before getting all prosecutorial and whatnot.

Any idea, in my opinion, that endorses some touchy feely, walking on eggshells approach is PC. I'm gonna open a comic book store - PERIOD. I don't need anyone's "OK" to do it. Might I avoid some problems if I sat down and talked it out with the locals ? Maybe, but considering most of those peopl - as proven by this case - are a bunch of bumbling fools - and I'm being kind in that assessment - I'd just as soon take my freakin' chances.


I don't mean you have to go around kissing people's asses. I mean if you can take steps early to prevent going to court, you'll be better off.

It's a really small point I was trying to make, btw.

Troll, I doubt very much that the owner of Keith's Comics thought he needed to take more care than he did - by putting adult and violent comics in a separate section of his store, clearly marked as such.

What more do people want?

If I'm not mistaken, the DA is an elected position. The question then becomes, can enough people be motivated to get rid of the guy?

We have a prosecutor (lower-level, not the DA) in my county here in subtropical west Georgia who does a passable job in his post, but is a headline hound of the worst sort and a drama queen even in private. He's up for re-election next year. Everyone seems convinced he's toast.

It can be done.

So - we all agreed kicking out the Taliban - those ultraconservative religious types that restricted people's rights based on their over-literal interpretation of their religious books.

Seems to me the conservative religious forces here in the US are heading down the same path.

Wow, Texas sounds like its making an attempt to one up the Nazi's. They just burned books, we're getting comic books and pornos too!

Ken: Is the DA in question really a "conservative religious force", or is he just looking for cheap PR and votes "for the Children"?

There's a difference, and it matters.

Cmon' Michelle? Where is the "Christianity, Religion of Tolerance™" rant?


I've never, ever accused Christianity of being tolerant.

Islam, especially in the face of recent criticism, has touted itself as a 'Religion of Peace'. If Christianity did that, I'm pretty sure I would have heard about it, because other religious groups would pounce on it immediately, and start reminding people of the Crusades.

The way I understand it, Dallas County has a revenue earning scheme that goes something like this: Undercover cop goes into Dallas County pornshop, makes purchase and arrests the clerk on obsenity charges. Owner of pornshop pays fine, Dallas County makes money, the status quo continues. A few months later a new pornshop is "investigated" and the cycle starts again. Think of it as a sort of quasi-legal protection racket: Dallas County shakes down the local pornshops for money, but never shuts the pornshops down or legislates them out of business.

Keith's Comics was 'hit' not to protect the community, but for the money....


From Bruce the Psychic Guy:

"5th August 2003
1:25pm: BitPig News / It's Not a Court of Justice, It's a Court of Law"

"Keith Colvin, a good friend of mine, owns a local chain of comics shops. Not long ago, the City prosecutor here in Dallas convicted Keith's employee, Mr. Jesus Castillo, for selling a copy of the Demon Beast Invasion manga to an adult cop posing as a customer."

"Yes, you read that right. Mr. Castillo was busted for selling an adults-only comic book to an adult."

"The City's rationale was that Keith's shop is located across the street from a public elementary school, and was therefore by its very presence a sort of “honey trap” for minors. Never mind that the adult comics were kept behind the counter; obviously, Keith was enticing innocent children to enter his shop of horror, and then selling them lurid Japanese rape comics!"

"(Needless to say, Keith was doing no such thing. He's a family man and would never dream of selling such a book to a kid.)"

"The funny thing is that the school in question is a school for the deaf; the students there are never allowed to go outside except under the strictest adult supervision. The idea that the faculty of the school would allow deaf students to wander blithely about the neighborhood is incredible -- yet the charges stuck."

What a bunch of arrogant jerks! here's what I hear you saying in this thread...
"Its a free country, I'll sell my smut wherever I d@mn well please , and F*** the law, F### the community, and F$$$ you if you object."
If you don't like the obscenity laws in Texas, you are welcome to move to Vegas, or hollywood, or wherever else selling smut unabated is the moral standard for the community. But if you are conducting a business that sells sexually oriented materials or services, know that it is ILLEGAL to operate such a business w/in a certain proximity to a school (deaf or not) or a church, or wherever else the legal statute prohibits.
The clerk was not arrested for "selling a comic book to an adult." To say that that is so is assinine, and distorts the facts of the law. He was in the business of selling sexually oreinted material in proximity of a school. Get off your high horse, and stand up for the side of LAW and ORDER.

Yeah! The chief problem with law and order in Dallas, Texas, is people selling soft-porn comic books to adults in proximity to schools.

That, and people selling ASPIRIN, on which children could OVERDOSE, at drugstores all over the place! And there are CARS out there--even in school parking lots!--which kids could use to hurt themselves very seriously! And people keeping DOGS with TEETH right here in our NEIGHBORHOODS!

If we don't get some parents, doors, and leashes around here--and for God's sake, keep those COMICS right where they are in the adults' section--someone could get HURT!

In other words, this has to do with personal responsibility and freedom: two things that go hand in hand. Not every law on the books is just, and not every law, just or no, is enforced fairly. Wake up and smell the reality.

From the perspective of a Texas lawyer who's concerned that folks are badly exaggerating the likely impact of this case -- and that there's also a lot of factual misinformation floating around about it -- I've blogged about this case at considerable length at http://beldar.blogs.com/beldarblog/2003/08/im_very_close_t.html ....

As long as Miller v. California is the law of the land, there exists a risk of this sort of conviction. But this case emphatically does NOT set any precedent that, for instance, comics aren't protected by the First Amendment, as some have portrayed it. It has almost zero precedential effect, in fact.

But for the failure of Mr. Castillo's defense lawyer to renew a pretrial objection during the trial itself, the trial court almost certainly would have kept out of evidence any mention of the school. As it was, the prosecutor's conflating of the obscenity issues with the "availability to children" issue was something she probably felt she had to do in order to get a conviction. It's a good sign when prosecutors have to cheat to win, in general.

Mr. Castillo probably did get a raw deal. It's mitigated substantially by the fact that (contrary to much of the reporting going around) he did zero jail time on this misdemeanor conviction, and his legal fees and the fine and court costs were picked up by supporters.

Finally, if this comic -- which by any definition was pornographic -- had been in a secured area like that from which most pornographic videos and magazines are sold, the prosecution wouldn't have been able to do her mischief. A good defense lawyer should be able to keep the jury focused on the "consenting adults in the privacy of their own homes" theme; this one, for whatever reasons, apparently didn't. So even though there's a risk that this kind of thing will happen again -- and friends and neighbors, you're kidding yourself if you think it can't happen anywhere in the US, not just in Texas -- there are reasonable grounds to think that it won't happen too very often, and that there might indeed be a different result at least some of the time.

FYI, the link given above for the CBLDF is incorrect, it should of course be www.cbldf.org