The Only American Cartoonist To Ever Go To Jail For Drawing
A picture is worth a thousand words?—?or 4 days in prison.
Before the internet let us instantly share our thoughts with the entire world, there were things called “zines.” Ordinary people all over the world made, photocopied and then sold them through the mail, one issue at a time. There were zines for everything from death metal to dishwashing. They were cheap to produce, meaning just about anyone could make one.
Mike Diana started drawing his own comics in 1987 while he was still in high school. The Largo, Florida teen loved heavy metal and horror movies and his crude drawings jittered with nervous energy.
In 1988, Diana photocopied the first issue of Boiled Angel, a collection of his work. He made 65 copies and sent them to his readers around the country.
Diana’s work struck a chord in the grunge community. He gleefully violated taboos with artwork that was violent and scatological. He soon began contributing comics and illustrations to other zines while regularly publishing new issues of Boiled Angel.
And then Diana got a nice letter from a guy named Michael Flores.
Flores claimed to be a fellow artist who had just moved to Largo. In his letter he enclosed a check for two issues of Boiled Angel, which Diana dutifully sent him.
Michael Flores wasn’t an artist, though. He was a cop, and the zine was entered into evidence at the state attorney’s office.
A few months later an assistant district attorney named Stuart Baggish discovered Diana’s zines in the evidence room. Baggish saw in Diana a perfect target to scandalize Pinellas County with a monster living among them. It would be a slam dunk prosecution.
Diana got a letter in the mail telling him he was being charged with three counts of obscenity for Boiled Angel: one for drawing it, one for publishing it and one for advertising it. Baggish set about assembling a jury that wouldn’t be sympathetic to a young, long-haired metalhead with transgressive tastes.
On the stand, Baggish claimed that if Diana wasn’t stopped from drawing, he could become a mass murderer?—?or inspire other people to kill.
Luckily, Diana wasn’t fighting this battle alone. The Comic Book Legal Defense Fund?—?which had been set up with money from some of the industry’s biggest stars?—?agreed to take on Diana’s case. Diana was the first artist they’d ever had to help, and they paid $10,000 for a well-regarded lawyer named Luke Lirot.
Lirot correctly argued that although Diana’s work was intense and demented, it was also protected by the First Amendment.
The jury didn’t care. After 90 minutes of deliberation, they pronounced Mike Diana guilty.
He talked to me about his mindset at the trial:
“Mostly I was extremely angry at Florida at that moment. The lawyer and my defense worked so hard, and I thought I was going to win. The obscenity law itself is how they get around the First Amendment. So I knew my rights were taken from me.”
The judge remanded him to jail while he awaited sentencing. This, too, was unusual?—?while it’s common for violent criminals to wait behind bars, obscenity is a misdemeanor where nobody was harmed.
Diana spent 4 days in jail before being sentenced to 3 years probation, 1,200 hours of community service and a $3,000 fine. But that wasn’t the worst of it.
For those 3 years, Diana was ordered to submit to random searches of his property by police officers and deputies to make sure he wasn’t drawing. If they found he was, they were authorized to seize and destroy anything he made. Even if he never showed it to another living soul, Diana was forbidden to set pen to paper for 3 entire years.
That ruling drove civil rights activists into a fury. Diana had become the only artist in America to receive a criminal conviction for obscenity. Taking away a person’s right to expression is a blatant violation of the First Amendment. It’s one thing to punish illegal speech like libel or threats. It’s another to deny someone the right to make any speech at all.
The Comic Book Legal Defense Fund filed two appeals; the case made its way to the Supreme Court, which refused to hear it.
Diana accepted his sentence, packed up his life in Florida and moved to New York City?—?a friendlier place for art that offends. “I had to send payments for my probation fee and toward my $3,000 fine. Well unfortunately I got a little behind on the payments and then the probation officer was calling from Florida reminding me I can’t draw. I had started drawing for publications in NYC.”
Diana was in violation of his sentence, but he got lucky. His probation officer had quit, sending Diana’s case into limbo for the next few years.
Thankfully, nobody in Florida felt the need to head north and haul Diana back to court for drawing. He paid off the $3,000, did his service at a community garden in the Lower East Side and tried to start his artistic life over.
The long strange trip of Mike Diana is about to take another turn, as a documentary film of his case was just funded on Kickstarter.
The film is set to be directed by Frank Henenlotter, who’s no stranger to public outrage thanks to the bizarre horror flicks he’s made (like “Basket Case”). According to the Kickstarter page, the film’s producer and Henenlotter himself, the documentary will delve deep into Diana’s brain to tease out where he gets his demented ideas and examine how it felt to be branded a criminal for making a comic book.
“I met Mike Diana in 2010 and we had been hanging out for about 6 months when he rather casually mentioned the trial,” Henenlotter told Dose. “I had never heard about it before and couldn’t believe what was telling me. I immediately knew that the combination of transgressive comic-book art, the First Amendment, and the outrageousness of his trial was a great subject for a doc.”
We like to think that the First Amendment absolutely protects what we say, but the story of Mike Diana shows that just isn’t true. An overzealous prosecutor, an easily-led jury and a loose grasp of the law resulted in an innocent man being forbidden from creating art for three years.
But Diana knows that the struggle isn’t his alone. “Keep up the fight against oppression, don’t let the powers that be walk all over you without a fight. Our rights can easily be taken away from us.”