Mike Diana
Encyclopedia
Michael Christopher "Mike" Diana(born 1969) is an underground
cartoonist
who became the first artist ever to receive a criminal conviction for obscenity
for artwork in the United States
.
. He, his younger sister and younger brother, Matt, were baptized Catholic. His mother placed him in an after school art program where, for one assignment, his class was to collect seashells on the beach and incorporate them into a collage made with Plaster of Paris
. Diana instead incorporated the garbage and a dead fish he had found, referring to the beach pollution that at the time, was the topic of news stories. Diana would later relate this story during his obscenity trial to illustrate his point of view that "art can be ugly and convey a message."
In 1979, when nine-year-old Diana was in the middle of fourth grade, they and their parents moved from Geneva, New York
to Largo, Florida
. Though Diana received barely passing or failing grades, he received A's
in art classes.
Ugly stickers, Wacky Packages
and Creature Feature
cards. Publications that he drew inspiration from included Heavy Metal
, Creepy
, Eerie
, Basil Wolverton
's Plop!
, Bernie Wrightson
's run on Swamp Thing
, and the work of Jack Davis
. He also enjoyed underground comics from creators such as S. Clay Wilson
, Greg Irons
,
Rory Hayes, and Jack Chick
's Chick tract
s, which he describes as "sick". He also enjoyed visiting the Salvador Dalí Museum
in St. Petersburg
.
Though Diana enjoyed the stained glass
windows in the Church he attended every Sunday as a child, seeing Jesus hanging on the cross disturbed him. He eventually came to so loathe the donating of money into collection baskets following sermons that spoke of burning in hell, his Sunday bible study class, and the denouncing of popular music among his fellow congregants that he stopped going to church by age 16. The animus he developed toward the Roman Catholic Church
, along with the Jack Chick tracts, influenced Diana's depiction of anti-religious themes in his work. The conservative Florida atmosphere against which Diana chafed also influenced the graphic nature of his imagery.
In 1987, during his senior year of high school his aversion to class inspired him to draw his own comics, which would depict unpopular teachers being graphically killed, and which he would distribute to his friends. He submitted them to horror magazines, but was met with rejection. Diana, who lived with his father, would stay up late at night and into the morning working on his comics following working shifts at his father's convenience store in Largo. The content of his work was often characterized by nudity, violence, caricature of the human form and scatological themes, which he says he produces in order to "open people's eyes" by shocking them. In 1988 Diana and his friend Robert, who was also born in New York State, bonded over their mutual dislike of the Florida climate, and after Robert got a job at a print shop, he convinced his boss to let them print at cost 960 copies of a zine
on which they collaborated called HVUYIM, provided that they did the labor. Later that year Diana created another zine called Angelfuck, which was named after a song from the Misfits album Static Age
, of which he published three issues. He then decided to do a digest size
magazine, which he called Boiled Angel, which also depicted such horrors as cannibalism, torture, rape and murder. The first issue had a print run of 65 signed and numbered copies, and by the time he printed issue #2, demand by readers, who were mostly people in other states and those who had read write-ups in review publications like Fact Sheet Five, increased its print run to 300.
In 1988 nineteen-year-old Diana was working as an elementary school janitor in Largo, where he would use the school's copy machine to print out the magazine. The publication, which depicted subjects, such as child rape and sodomy, bestiality
, human mutilation and drug use, was distributed to about 300 subscribers. Diana was fired by the school after some of the material that he had left there was discovered.
in Florida. Copies of the books were also found in the possession of the suspect in that case, which brought the publication to the attention of the Federal Bureau of Investigation
. Later that year, a few days before Christmas and after Diana had sent out a few copies of the just-published Boiled Angel #6, FBI agents showed up at Diana's mother's house, which Diana was known to visit, and showing him a copy of that issue, told him that he was a suspect in the case, and requested a blood samples for DNA analysis. The test results ruled out Diana as a suspect, so the FBI forwarded their information on Diana and his work to the Pinellas County Sheriff's Office in Florida.
Later, after laboratory tests cleared him as a suspect, and Diana printed Boiled Angel #7 and 8 (the final issue of that series), and a new graphic novel called Sourball Prodigy, he received a total of ten letters from a police officer named Michael Flores, who was posing as a fellow artist who had just moved to Largo from Fort Lauderdale, and who, having heard of Diana's comics, requested copies his books. Flores insisted in his letters that he was not a policeman, and despite declining to meet Diana in person, Diana obliged him with copies of his comics. In 1992 the Assistant State's Attorney, Stuart Baggish, later came across the books and sent Diana a certified letter that said he was being charged with obscenity
, pursuant to Florida Statute § 847.011(1): one for publishing the material, one for distributing it, and one for advertising it.
organization the Comic Book Legal Defense Fund
(CBLDF), which provided him with a lawyer, Luke Lirot, and paid Diana's legal fees, which would later total $10,000. Lirot argued that Flores' letters constituted entrapment
, but failed to get the case summarily dismissed, or to get the case moved to Tampa, where he and Diana felt they would get a better chance at a fair jury. They went to trial the following year, in March 1994, in Pinellas County Court.
Baggish argued that Diana's work was obscene in a way that an easily available teen horror movie was not, because the latter "portrays violence in a gross way, but it does not portray sex in a patently offensive way", which is one of the the criteria for obscenity under the 1973 U.S. Supreme Court Miller v. California
ruling, the other two being an appeal to the "average" prurient interest in sex, and the lack of any artistic, literary, political, or scientific value. According to Lirot, the jury was visibly disgusted by the examples of Boiled Angel that they were made to read. According to Diana, the jurors were asked "what their idea of art was, and one of them said 'needlepoint.'" Baggish also called as a witness Tampa psychologist Sidney Merin, who stated that people "of questionable personality strengths" could be aroused by the comic book. The prosecution also made a point of informing the jury that Diana had been a suspect in the Gainesville murders, despite the fact that the real killer, Danny Rolling
, had been caught and plead guilty before the trial started, and Baggish told the jurors that if Diana weren't stopped he might become a mass murderer, or turn others into killers, as Diana's comics were clearly aimed at such people. Baggish drew parallels with the Rolling case, stating, "This is how Danny Rolling got started. Step one, you start with the drawings. Step two, you go on to the pictures. Step three is the movies. And step number four, you're into reality. You're creating these scenes in reality." Baggish would later argue after the trail that serial killer Ted Bundy
had blamed pornography for his crimes.
Diana testified for over three hours to explain his art to the jury, though the judge denied his request to enter into evidence a stack of his old underground comics
, with which Diana wished to illustrate that he was not doing anything unprecedented. In his summary, Baggish told the jurors "Pinellas County has its own identity. It doesn't have to accept what is acceptable in the bathhouses in San Francisco, and it doesn't have to accept what is acceptable in the crack alleys of New York." On March 29, 1994, after a week-long trial, the jury found him guilty after deliberating for 90 minutes, making Diana the first artist to be convicted of obscenity in the United States.
According to Robyn Blumner, executive director of the American Civil Liberties Union
of Florida, the comics' political and anti-establishment themes, which included its depiction of pedophile priests, crosses smeared with feces, and a drawing of two eggs frying atop a Bible with the caption "This is your brain on religion" should've protected Diana from an obscenity conviction under the First Amendment, but instead inflamed the jury toward a conviction. Pointing to the prosecution's allusions to serial murder, Diana opined that he was railroaded. Diana further likened Largo to a "police state
", saying that the police had the fire department evict his family from their house with only one week's notice, and bulldozed it.
and Mother Jones
magazine, with the latter's Sean Henry stating that while this was the norm for murderers and drug lords, it is not so for those convicted of misdemeanors. Fullerton explained, "I felt incarceration in jail was part of the sentence, so why not begin? He learned some good lessons." Though Baggish recommended Diana be incarcerated for two years, Fullerton sentenced Diana to three years of supervised probation, a $3,000 fine ($1,000 for each count), 1,248 hours of community service, and ordered him to avoid contact with minors. Fullerton also ordered Diana to follow a state-supervised psychiatric evaluation at his own expense, to take an ethics-in-journalism class, and ruled that he was to submit to unannounced, warrantless searches of his personal papers by the police and deputized probation officers from the Salvation Army
, which would allow them to seize any drawings or writings. Although such random searches during probation are typical only in drug and weapons cases, Baggish stated that it was natural to extend this for obscenity convictions, saying, "Treatment is the most important part of the sentence", and that such searches were 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."
Aspects of this sentence drew critical reaction from the civil liberties
community. Blummer was surprised by these provisions, saying, "I don't know of any time when such monitoring has been used on an artist. 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." Susan Alston of the CBLDF branch in Northampton, Massachusetts
argued, "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. Diana is definitely the first artist who's been banned as part of his sentence." Richard Wilson, a national officer of the First Amendment Lawyers Association, called the sentence "absolutely illegal", saying that it amounted to unconstitutional prior restraint. Noted comics creators also were outraged. Comics writer and novelist Neil Gaiman
spoke out in support of Diana, and writer and theorist Scott McCloud
called the inspection and seizure of Diana's personal drawings "sheer lunacy".
magazine that depicted himself as a tiny figure in the courtroom, and the judge and prosecutors as monsters surrounding him, which he jokingly suggested violated his probation.
Following his sentencing, Diana consulted with a psychiatrist who told him she charged $100 an hour for his exam, which she said would take three hours. Upon conclusion of the exam, which involved an interview, an examination of his work, true/false questions, and a Rorschach test
, she charged him $1,300, informing him that she had spent 10 hours reviewing his comics. Diana, who suspected her of inflating her bill because she knew the court had ordered him to pay for the exams, refused, and was never given the test results.
According to the November/December 1994 Mother Jones magazine, Diana had been recently 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 stated that Diana was unaware of the forgery and charges were dropped when Diana agreed to a pretrial probation program.
Two appeals to the State Appellate Court
failed to have the case reversed or reheard in Florida. During the first appeal process, the prosecution used evidence gathered after the original trial, a move that, according to the CBLDF, is usually considered unethical. On May 31, 1996, Douglas Baird upheld Diana's conviction on two of the counts, affirming the original ruling that Diana's work was "patently offensive", and that if Diana's intent was to show "that horrible things are happening in our society, [he] should have created a vehicle to send his message that was not obscene." The only count of the three that was judged incorrect was the one for advertising obscene material, because the advertisement in question was the "Be on the lookout for the next issue #8!" blurb that ran in issue #7, and the Court agreed that it was improper to convict someone for advertising material that had not yet been created since Diana could not, at the time, know the nature or character of the work.
In 1996, while his case was still on appeal in Florida, Diana moved to New York
, where he was granted permission to serve out his sentence, and fulfill his community service obligation through volunteer work for the Comic Book Legal Defense Fund. Soon afterward the move, the Court refused to accept an amicus brief submitted by the American Civil Liberties Union
, and responded without comment to the second appeal. Because Diana was no longer in their jurisdiction, and New York City refused to extradite him because his convictions were for misdemeanors, they allowed him to serve his probation by mail, and took the required journalistic ethics course at New York University
. Diana found another psychiatrist who charged him only $100, and concluded that he was perfectly normal, which she reported to the Florida court. He performed his community service by working about ten hours per week at Lower East Side
community garden and another six hours per week at Gods Love We Deliver, a group that delivers food to HIV patients. Before his probation officer quit the Salvation Army-run probation department, she told the court before that Diana had violated his probation. Still owing $2,000 in fines, a warrant was issued for his arrest in Florida.
In May 1997 the CBLDF and the ACLU submitted a petition for a writ of certiorari
to the United States Supreme Court to hear Diana's case, with First Amendment attorney George Rehdart assisting in the petition. On June 27, the Court denied the petition without comment, effectively ending his legal options in his battle to overturn his conviction.
and Michael Hunt Publishing. Angry Drunk Graphics now publishes his work.
In a 2011 interview, he indicated that he planned to release a box set of Boiled Angel #1 - 8. He also indicated a desire one day to produce a graphic novel about the court case and how his life in Florida influenced the rebellious nature of his art. He also continues to enjoy painting.
Diana has indicated that he usually does not vote, the one exception being the 1992 U.S. Presidential election
, in which he voted for Ross Perot
in the hopes of preventing a victory by Bill Clinton
. Regarding the 2000 Presidential election
, Diana says that had he voted, he would have voted for Ralph Nader
.
play written by David Johnston
and directed by Gary Shrader. The play borrows many particulars from the legal case and punishments meted out to Mike Diana, while the character of the comic artist in Busted Jesus and the background story are entirely fictional. The play has been produced on Off-Off-Broadway
and in Los Angeles
, and has received favorable reviews.
Diana's prosecution was referenced in the graphic novel Teenagers from Mars by Rick Spears
and Rob G.
Underground comix
Underground comix are small press or self-published comic books which are often socially relevant or satirical in nature. They differ from mainstream comics in depicting content forbidden to mainstream publications by the Comics Code Authority, including explicit drug use, sexuality and violence...
cartoonist
Cartoonist
A cartoonist is a person who specializes in drawing cartoons. This work is usually humorous, mainly created for entertainment, political commentary or advertising...
who became the first artist ever to receive a criminal conviction for obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
for artwork in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
Early life
Mike Diana was born in 1969 in New YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
. He, his younger sister and younger brother, Matt, were baptized Catholic. His mother placed him in an after school art program where, for one assignment, his class was to collect seashells on the beach and incorporate them into a collage made with Plaster of Paris
Plaster
Plaster is a building material used for coating walls and ceilings. Plaster starts as a dry powder similar to mortar or cement and like those materials it is mixed with water to form a paste which liberates heat and then hardens. Unlike mortar and cement, plaster remains quite soft after setting,...
. Diana instead incorporated the garbage and a dead fish he had found, referring to the beach pollution that at the time, was the topic of news stories. Diana would later relate this story during his obscenity trial to illustrate his point of view that "art can be ugly and convey a message."
In 1979, when nine-year-old Diana was in the middle of fourth grade, they and their parents moved from Geneva, New York
Geneva, New York
Geneva is a city in Ontario and Seneca counties in the U.S. state of New York. The population was 13,617 at the 2000 census. Some claim it is named after the city and canton of Geneva in Switzerland. Others believe the name came from confusion over the letters in the word "Seneca" written in cursive...
to Largo, Florida
Largo, Florida
Largo is the third largest city in Pinellas County, Florida, USA and is part of the Tampa Bay Area. Centrally located, it is the crossroads of the county. As of the 2000 census, the City had a total population of 69,371. As of 2004, the population estimated by the U.S. Census Bureau was...
. Though Diana received barely passing or failing grades, he received A's
Academic grading in the United States
Academic grading in the United States most commonly takes on the form of five letter grades. Historically, the grades were A, B, C, D, and F—A being the highest and F, denoting failure, the lowest. In the mid-twentieth century, many American educational institutions—especially in the Midwest —began...
in art classes.
Amateur publishing career
Diana began drawing comics in high school, influenced by macabre subject matter such as ToppsTopps
The Topps Company, Inc., manufactures chewing gum, candy and collectibles. Based in New York, New York, Topps is best known as a leading producer of baseball cards, football cards, basketball cards, hockey cards and other sports and non-sports themed trading cards.-Company history:Topps itself was...
Ugly stickers, Wacky Packages
Wacky Packages
Wacky Packages are a series of trading cards and stickers featuring parodies of North American consumer products. The cards were produced by the Topps Company beginning in 1967, usually in a sticker format. The original series sold for two years, and the concept proved popular enough that it has...
and Creature Feature
Creature Feature
The Creature Feature is an animal gag cartoon strip which appeared weekly in the Sunday Times supplement, Funday Times, for over 15 years, and is currently syndicated throughout the world, including Germany and the Middle East...
cards. Publications that he drew inspiration from included Heavy Metal
Heavy Metal (magazine)
Heavy Metal is an American science fiction and fantasy comics magazine, known primarily for its blend of dark fantasy/science fiction and erotica. In the mid-1970s, while publisher Leonard Mogel was in Paris to jump-start the French edition of National Lampoon, he discovered the French...
, Creepy
Creepy
Creepy was an American horror-comics magazine launched by Warren Publishing in 1964. Like Mad, it was a black-and-white newsstand publication in a magazine format and thus did not require the approval or seal of the Comics Code Authority. The anthology magazine was initially published quarterly but...
, Eerie
Eerie
Eerie was an American magazine of horror comics introduced in 1966 by Warren Publishing. Like Mad, it was a black-and-white newsstand publication in a magazine format and thus did not require the approval or seal of the Comics Code Authority. Each issue's stories were introduced by the host...
, Basil Wolverton
Basil Wolverton
Basil Wolverton was an American cartoonist, illustrator, comic book writer-artist and professed "Producer of Preposterous Pictures of Peculiar People who Prowl this Perplexing Planet", whose many publishers included Marvel Comics and Mad.His unique, humorously grotesque drawings have elicited a...
's Plop!
Plop!
Plop!, "The New Magazine of Weird Humor!", was a comic book anthology published by DC Comics in the mid 1970s. It falls into the horror / humor genre. There were 24 issues in all and the series ran from Sept./Oct. 1973 to Nov./Dec. 1976.-Contents:...
, Bernie Wrightson
Bernie Wrightson
Bernie "Berni" Wrightson is an American artist known for his horror illustrations and comic books.-Biography:...
's run on Swamp Thing
Swamp Thing
Swamp Thing, a fictional character, is a plant elemental in the created by Len Wein and Berni Wrightson. He first appeared in House of Secrets #92 in a stand-alone horror story set in the early 20th century . The Swamp Thing then returned in his own series, set in the contemporary world and in...
, and the work of Jack Davis
Jack Davis (cartoonist)
Jack Davis is an American cartoonist and illustrator, known for his advertising art, magazine covers, film posters, record album art and numerous comic book stories...
. He also enjoyed underground comics from creators such as S. Clay Wilson
S. Clay Wilson
S. Clay Wilson is an American underground cartoonist and central figure in the underground comix movement. Wilson is known for aggressively violent and sexually explicit panoramas of "lowlife," often depicting the wild escapades of pirates and bikers. He was an early contributor to Zap Comix,...
, Greg Irons
Greg Irons
Greg Irons was a poster artist, underground cartoonist, animator and tattoo artist. Born in Philadelphia, Pennsylvania, he moved to San Francisco, California, in 1967, where he soon found work doing posters for Bill Graham at the Fillmore Auditorium.After working on the film Yellow Submarine, he...
,
Rory Hayes, and Jack Chick
Jack Chick
Jack Thomas Chick is an American publisher, writer, and comic book artist of fundamentalist Christian tracts and comic books...
's Chick tract
Chick tract
Chick tracts are short evangelical-themed tracts created by American publisher Jack Chick. Chick tracts use a comic book format. They are often controversial for their enthusiastic endorsement of fundamentalist Christianity and condemnation of ecumenical, liberal, and prosperity Christians, the...
s, which he describes as "sick". He also enjoyed visiting the Salvador Dalí Museum
Salvador Dalí Museum
The Salvador Dalí Museum in St. Petersburg, Florida, United States, houses the largest collection outside Europe of the works of the artist Salvador Dalí and is located on the Downtown St. Petersburg waterfront.-History:...
in St. Petersburg
St. Petersburg, Florida
St. Petersburg is a city in Pinellas County, Florida, United States. It is known as a vacation destination for both American and foreign tourists. As of 2008, the population estimate by the U.S. Census Bureau is 245,314, making St...
.
Though Diana enjoyed the stained glass
Stained glass
The term stained glass can refer to coloured glass as a material or to works produced from it. Throughout its thousand-year history, the term has been applied almost exclusively to the windows of churches and other significant buildings...
windows in the Church he attended every Sunday as a child, seeing Jesus hanging on the cross disturbed him. He eventually came to so loathe the donating of money into collection baskets following sermons that spoke of burning in hell, his Sunday bible study class, and the denouncing of popular music among his fellow congregants that he stopped going to church by age 16. The animus he developed toward the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
, along with the Jack Chick tracts, influenced Diana's depiction of anti-religious themes in his work. The conservative Florida atmosphere against which Diana chafed also influenced the graphic nature of his imagery.
In 1987, during his senior year of high school his aversion to class inspired him to draw his own comics, which would depict unpopular teachers being graphically killed, and which he would distribute to his friends. He submitted them to horror magazines, but was met with rejection. Diana, who lived with his father, would stay up late at night and into the morning working on his comics following working shifts at his father's convenience store in Largo. The content of his work was often characterized by nudity, violence, caricature of the human form and scatological themes, which he says he produces in order to "open people's eyes" by shocking them. In 1988 Diana and his friend Robert, who was also born in New York State, bonded over their mutual dislike of the Florida climate, and after Robert got a job at a print shop, he convinced his boss to let them print at cost 960 copies of a zine
Zine
A zine is most commonly a small circulation publication of original or appropriated texts and images. More broadly, the term encompasses any self-published work of minority interest usually reproduced via photocopier....
on which they collaborated called HVUYIM, provided that they did the labor. Later that year Diana created another zine called Angelfuck, which was named after a song from the Misfits album Static Age
Static Age
-The Misfits:*Glenn Danzig - vocals*Franché Coma - guitar*Jerry Only - bass guitar*Mr. Jim - drums-Studio personnel:*Dave Achelis - producer, engineer, and mixer*Alan Douches - mixing of tracks 15-17, mastering...
, of which he published three issues. He then decided to do a digest size
Digest size
Digest size is a magazine size, smaller than a conventional or "journal size" magazine but larger than a standard paperback book, approximately 5½ x 8¼ inches, but can also be 5⅜ x 8⅜ inches and 5½ x 7½ inches. These sizes have evolved from the printing press operation end...
magazine, which he called Boiled Angel, which also depicted such horrors as cannibalism, torture, rape and murder. The first issue had a print run of 65 signed and numbered copies, and by the time he printed issue #2, demand by readers, who were mostly people in other states and those who had read write-ups in review publications like Fact Sheet Five, increased its print run to 300.
In 1988 nineteen-year-old Diana was working as an elementary school janitor in Largo, where he would use the school's copy machine to print out the magazine. The publication, which depicted subjects, such as child rape and sodomy, bestiality
Zoophilia
Zoophilia, from the Greek ζῷον and φιλία is the practice of sex between humans and non-human animals , or a preference or fixation on such practice...
, human mutilation and drug use, was distributed to about 300 subscribers. Diana was fired by the school after some of the material that he had left there was discovered.
Investigation
In 1991, a California law enforcement officer came into possession of one of the comics, parts of which reminded him of the then-unsolved Gainesville student murdersDanny Rolling
Daniel Harold Rolling , also known as The Gainesville Ripper, was an American serial killer who murdered five students in Gainesville, Florida. Rolling later confessed to raping several of his victims, committing an additional 1989 triple homicide in Shreveport, Louisiana, and attempting to murder...
in Florida. Copies of the books were also found in the possession of the suspect in that case, which brought the publication to the attention of the Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
. Later that year, a few days before Christmas and after Diana had sent out a few copies of the just-published Boiled Angel #6, FBI agents showed up at Diana's mother's house, which Diana was known to visit, and showing him a copy of that issue, told him that he was a suspect in the case, and requested a blood samples for DNA analysis. The test results ruled out Diana as a suspect, so the FBI forwarded their information on Diana and his work to the Pinellas County Sheriff's Office in Florida.
Later, after laboratory tests cleared him as a suspect, and Diana printed Boiled Angel #7 and 8 (the final issue of that series), and a new graphic novel called Sourball Prodigy, he received a total of ten letters from a police officer named Michael Flores, who was posing as a fellow artist who had just moved to Largo from Fort Lauderdale, and who, having heard of Diana's comics, requested copies his books. Flores insisted in his letters that he was not a policeman, and despite declining to meet Diana in person, Diana obliged him with copies of his comics. In 1992 the Assistant State's Attorney, Stuart Baggish, later came across the books and sent Diana a certified letter that said he was being charged with obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
, pursuant to Florida Statute § 847.011(1): one for publishing the material, one for distributing it, and one for advertising it.
Trial
Diana contacted the non-profit First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
organization the Comic Book Legal Defense Fund
Comic Book Legal Defense Fund
The Comic Book Legal Defense Fund is a United States non-profit organization created in 1986 to protect the First Amendment rights of comics creators, publishers, and retailers covering legal expenses....
(CBLDF), which provided him with a lawyer, Luke Lirot, and paid Diana's legal fees, which would later total $10,000. Lirot argued that Flores' letters constituted entrapment
Entrapment
In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment is a possible defense against criminal liability...
, but failed to get the case summarily dismissed, or to get the case moved to Tampa, where he and Diana felt they would get a better chance at a fair jury. They went to trial the following year, in March 1994, in Pinellas County Court.
Baggish argued that Diana's work was obscene in a way that an easily available teen horror movie was not, because the latter "portrays violence in a gross way, but it does not portray sex in a patently offensive way", which is one of the the criteria for obscenity under the 1973 U.S. Supreme Court Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
ruling, the other two being an appeal to the "average" prurient interest in sex, and the lack of any artistic, literary, political, or scientific value. According to Lirot, the jury was visibly disgusted by the examples of Boiled Angel that they were made to read. According to Diana, the jurors were asked "what their idea of art was, and one of them said 'needlepoint.'" Baggish also called as a witness Tampa psychologist Sidney Merin, who stated that people "of questionable personality strengths" could be aroused by the comic book. The prosecution also made a point of informing the jury that Diana had been a suspect in the Gainesville murders, despite the fact that the real killer, Danny Rolling
Danny Rolling
Daniel Harold Rolling , also known as The Gainesville Ripper, was an American serial killer who murdered five students in Gainesville, Florida. Rolling later confessed to raping several of his victims, committing an additional 1989 triple homicide in Shreveport, Louisiana, and attempting to murder...
, had been caught and plead guilty before the trial started, and Baggish told the jurors that if Diana weren't stopped he might become a mass murderer, or turn others into killers, as Diana's comics were clearly aimed at such people. Baggish drew parallels with the Rolling case, stating, "This is how Danny Rolling got started. Step one, you start with the drawings. Step two, you go on to the pictures. Step three is the movies. And step number four, you're into reality. You're creating these scenes in reality." Baggish would later argue after the trail that serial killer Ted Bundy
Ted Bundy
Theodore Robert "Ted" Bundy was an American serial killer, rapist, kidnapper, and necrophile who assaulted and murdered numerous young women during the 1970s, and possibly earlier...
had blamed pornography for his crimes.
Diana testified for over three hours to explain his art to the jury, though the judge denied his request to enter into evidence a stack of his old underground comics
Underground comix
Underground comix are small press or self-published comic books which are often socially relevant or satirical in nature. They differ from mainstream comics in depicting content forbidden to mainstream publications by the Comics Code Authority, including explicit drug use, sexuality and violence...
, with which Diana wished to illustrate that he was not doing anything unprecedented. In his summary, Baggish told the jurors "Pinellas County has its own identity. It doesn't have to accept what is acceptable in the bathhouses in San Francisco, and it doesn't have to accept what is acceptable in the crack alleys of New York." On March 29, 1994, after a week-long trial, the jury found him guilty after deliberating for 90 minutes, making Diana the first artist to be convicted of obscenity in the United States.
According to Robyn Blumner, executive director of the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
of Florida, the comics' political and anti-establishment themes, which included its depiction of pedophile priests, crosses smeared with feces, and a drawing of two eggs frying atop a Bible with the caption "This is your brain on religion" should've protected Diana from an obscenity conviction under the First Amendment, but instead inflamed the jury toward a conviction. Pointing to the prosecution's allusions to serial murder, Diana opined that he was railroaded. Diana further likened Largo to a "police state
Police state
A police state is one in which the government exercises rigid and repressive controls over the social, economic and political life of the population...
", saying that the police had the fire department evict his family from their house with only one week's notice, and bulldozed it.
Sentencing
Judge Walter Fullerton ordered Diana held in jail for four days until sentencing without bail, which drew criticism from publications such as St. Petersburg TimesSt. Petersburg Times
The St. Petersburg Times is a United States newspaper. It is one of two major publications serving the Tampa Bay Area, the other being The Tampa Tribune, which the Times tops in both circulation and readership. Based in St...
and Mother Jones
Mother Jones (magazine)
Mother Jones is an American independent news organization, featuring investigative and breaking news reporting on politics, the environment, human rights, and culture. Mother Jones has been nominated for 23 National Magazine Awards and has won six times, including for General Excellence in 2001,...
magazine, with the latter's Sean Henry stating that while this was the norm for murderers and drug lords, it is not so for those convicted of misdemeanors. Fullerton explained, "I felt incarceration in jail was part of the sentence, so why not begin? He learned some good lessons." Though Baggish recommended Diana be incarcerated for two years, Fullerton sentenced Diana to three years of supervised probation, a $3,000 fine ($1,000 for each count), 1,248 hours of community service, and ordered him to avoid contact with minors. Fullerton also ordered Diana to follow a state-supervised psychiatric evaluation at his own expense, to take an ethics-in-journalism class, and ruled that he was to submit to unannounced, warrantless searches of his personal papers by the police and deputized probation officers from the Salvation Army
Salvation Army
The Salvation Army is a Protestant Christian church known for its thrift stores and charity work. It is an international movement that currently works in over a hundred countries....
, which would allow them to seize any drawings or writings. Although such random searches during probation are typical only in drug and weapons cases, Baggish stated that it was natural to extend this for obscenity convictions, saying, "Treatment is the most important part of the sentence", and that such searches were 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."
Aspects of this sentence drew critical reaction from the civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
community. Blummer was surprised by these provisions, saying, "I don't know of any time when such monitoring has been used on an artist. 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." Susan Alston of the CBLDF branch in Northampton, Massachusetts
Northampton, Massachusetts
The city of Northampton is the county seat of Hampshire County, Massachusetts, United States. As of the 2010 census, the population of Northampton's central neighborhoods, was 28,549...
argued, "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. Diana is definitely the first artist who's been banned as part of his sentence." Richard Wilson, a national officer of the First Amendment Lawyers Association, called the sentence "absolutely illegal", saying that it amounted to unconstitutional prior restraint. Noted comics creators also were outraged. Comics writer and novelist Neil Gaiman
Neil Gaiman
Neil Richard Gaiman born 10 November 1960)is an English author of short fiction, novels, comic books, graphic novels, audio theatre and films. His notable works include the comic book series The Sandman and novels Stardust, American Gods, Coraline, and The Graveyard Book...
spoke out in support of Diana, and writer and theorist Scott McCloud
Scott McCloud
Scott McCloud is an American cartoonist and theorist on comics as a distinct literary and artistic medium...
called the inspection and seizure of Diana's personal drawings "sheer lunacy".
Probation, appeals and other legal troubles
Despite his and others' reaction to the sentence, and Diana's bitterness towards those who targeted him, he says his probation offer, who followed his trial, was generally sympathetic, and wished only to help him through his probation. During that time, Diana took up painting, and produced one for WiredWired (magazine)
Wired is a full-color monthly American magazine and on-line periodical, published since January 1993, that reports on how new and developing technology affects culture, the economy, and politics...
magazine that depicted himself as a tiny figure in the courtroom, and the judge and prosecutors as monsters surrounding him, which he jokingly suggested violated his probation.
Following his sentencing, Diana consulted with a psychiatrist who told him she charged $100 an hour for his exam, which she said would take three hours. Upon conclusion of the exam, which involved an interview, an examination of his work, true/false questions, and a Rorschach test
Rorschach test
The Rorschach test is a psychological test in which subjects' perceptions of inkblots are recorded and then analyzed using psychological interpretation, complex algorithms, or both. Some psychologists use this test to examine a person's personality characteristics and emotional functioning...
, she charged him $1,300, informing him that she had spent 10 hours reviewing his comics. Diana, who suspected her of inflating her bill because she knew the court had ordered him to pay for the exams, refused, and was never given the test results.
According to the November/December 1994 Mother Jones magazine, Diana had been recently 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 stated that Diana was unaware of the forgery and charges were dropped when Diana agreed to a pretrial probation program.
Two appeals to the State Appellate Court
Florida District Courts of Appeal
The Florida District Courts of Appeal are the intermediate appellate courts of the Florida state court system. There are five DCAs:*The First District Court of Appeal is headquartered in Tallahassee...
failed to have the case reversed or reheard in Florida. During the first appeal process, the prosecution used evidence gathered after the original trial, a move that, according to the CBLDF, is usually considered unethical. On May 31, 1996, Douglas Baird upheld Diana's conviction on two of the counts, affirming the original ruling that Diana's work was "patently offensive", and that if Diana's intent was to show "that horrible things are happening in our society, [he] should have created a vehicle to send his message that was not obscene." The only count of the three that was judged incorrect was the one for advertising obscene material, because the advertisement in question was the "Be on the lookout for the next issue #8!" blurb that ran in issue #7, and the Court agreed that it was improper to convict someone for advertising material that had not yet been created since Diana could not, at the time, know the nature or character of the work.
In 1996, while his case was still on appeal in Florida, Diana moved to New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, where he was granted permission to serve out his sentence, and fulfill his community service obligation through volunteer work for the Comic Book Legal Defense Fund. Soon afterward the move, the Court refused to accept an amicus brief submitted by the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
, and responded without comment to the second appeal. Because Diana was no longer in their jurisdiction, and New York City refused to extradite him because his convictions were for misdemeanors, they allowed him to serve his probation by mail, and took the required journalistic ethics course at New York University
New York University
New York University is a private, nonsectarian research university based in New York City. NYU's main campus is situated in the Greenwich Village section of Manhattan...
. Diana found another psychiatrist who charged him only $100, and concluded that he was perfectly normal, which she reported to the Florida court. He performed his community service by working about ten hours per week at Lower East Side
Lower East Side
The Lower East Side, LES, is a neighborhood in the southeastern part of the New York City borough of Manhattan. It is roughly bounded by Allen Street, East Houston Street, Essex Street, Canal Street, Eldridge Street, East Broadway, and Grand Street....
community garden and another six hours per week at Gods Love We Deliver, a group that delivers food to HIV patients. Before his probation officer quit the Salvation Army-run probation department, she told the court before that Diana had violated his probation. Still owing $2,000 in fines, a warrant was issued for his arrest in Florida.
In May 1997 the CBLDF and the ACLU submitted a petition for a writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the United States Supreme Court to hear Diana's case, with First Amendment attorney George Rehdart assisting in the petition. On June 27, the Court denied the petition without comment, effectively ending his legal options in his battle to overturn his conviction.
Post-legal trouble work
Mike Diana was published and represented by Shane BugbeeShane Bugbee
Shane Bugbee is an underground artist, publisher, multi-media communicator, filmmaker and event promoter.He has been criticized for allegedly exploiting the death of Dana Plato of Diff'rent Strokes by releasing a CD recording of her "dying breath".In 1986 he established Michael Hunt Publishing,...
and Michael Hunt Publishing. Angry Drunk Graphics now publishes his work.
In a 2011 interview, he indicated that he planned to release a box set of Boiled Angel #1 - 8. He also indicated a desire one day to produce a graphic novel about the court case and how his life in Florida influenced the rebellious nature of his art. He also continues to enjoy painting.
Personal life
As of 1994, Diana was engaged to Suzy Smith, who once produced a local cable show. They both posed nude for an underground magazine.Diana has indicated that he usually does not vote, the one exception being the 1992 U.S. Presidential election
United States presidential election, 1992
The United States presidential election of 1992 had three major candidates: Incumbent Republican President George Bush; Democratic Arkansas Governor Bill Clinton, and independent Texas businessman Ross Perot....
, in which he voted for Ross Perot
Ross Perot
Henry Ross Perot is a U.S. businessman best known for running for President of the United States in 1992 and 1996. Perot founded Electronic Data Systems in 1962, sold the company to General Motors in 1984, and founded Perot Systems in 1988...
in the hopes of preventing a victory by Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
. Regarding the 2000 Presidential election
United States presidential election, 2000
The United States presidential election of 2000 was a contest between Republican candidate George W. Bush, then-governor of Texas and son of former president George H. W. Bush , and Democratic candidate Al Gore, then-Vice President....
, Diana says that had he voted, he would have voted for Ralph Nader
Ralph Nader
Ralph Nader is an American political activist, as well as an author, lecturer, and attorney. Areas of particular concern to Nader include consumer protection, humanitarianism, environmentalism, and democratic government....
.
Cultural references
Mike Diana's legal troubles inspired Busted Jesus Comix, a 2005 off-BroadwayOff-Broadway
Off-Broadway theater is a term for a professional venue in New York City with a seating capacity between 100 and 499, and for a specific production of a play, musical or revue that appears in such a venue, and which adheres to related trade union and other contracts...
play written by David Johnston
David Johnston
David Lloyd Johnston is a Canadian academic, author and statesman who is the current Governor General of Canada, the 28th since Canadian Confederation....
and directed by Gary Shrader. The play borrows many particulars from the legal case and punishments meted out to Mike Diana, while the character of the comic artist in Busted Jesus and the background story are entirely fictional. The play has been produced on Off-Off-Broadway
Off-Off-Broadway
Off-Off-Broadway theatrical productions in New York City are those in theatres that are smaller than Broadway and Off-Broadway theatres. Off-Off-Broadway theaters are often defined as theaters that have fewer than 100 seats, though the term can be used for any show in the New York City area that...
and in Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
, and has received favorable reviews.
Diana's prosecution was referenced in the graphic novel Teenagers from Mars by Rick Spears
Rick Spears
Rick Spears is an American comic book writer, best known for works such as The Pirates of Coney Island and Black Metal.-Biography:Rick Spears is from Richmond, Virginia as is his main collaborator Rob G., although they did not actually meet until after they left: "[we] have lived sort of parallel...
and Rob G.
Rob G.
Rob G is an American comics artist who has done work for DC Comics, Image Comics, and AiT/Planet Lar, and is best known for Teenagers from Mars and The Couriers.-Biography:Rob G...
Books
- Boiled Angel zine #1-8
- Sourball Prodigy, zine by Mike Diana, 1992, published as book in 2002 by Portuguese publisher MMMNNNRRRG
- Superfly #1 Comic, by Mike Diana, 1993 published by Michael Hunt Publishing
- Cherry Bomb Revolution, by Mike Diana, 1995 published by Michael Hunt Publishing
- Worst of Boiled Angel, by Mike Diana, 1996 published by Michael Hunt Publishing
- Superfly #2 Comic, by Mike Diana, 1997 published by Michael Hunt Publishing
- Scummy Comix, by Mike Diana, 2007 published by AngryDrunkGraphics.com
As a contributor
- ANSWER Me!ANSWER Me!ANSWER Me! is a discontinued magazine which was edited by Jim and Debbie Goad and published between 1991 and 1994. Extremely misanthropic in its editorial content, it focused on the social pathologies of interest to the Los Angeles–based couple. The magazine was a major source of inspiration for...
#3 and #4 - Zero Zero
- CriCa Ilustrada mag published by Chili Com Carne (Portugal)
- Angry Drunk Graphics' Holiday Spectacular #2 published by AngryDrunkGraphics
- TESTicle PRESSure #1-#4 published by Propulsion Productions
- Zine Soup: A Collection of International Zines and Self-Published Art Books. TTC Gallery. 2009.
- Comic Book Artist (Vol 2) #6