Gordon Lee case dismissed

Free Press

(Updated) The charges against comics retailer Gordon Lee have finally been dismissed. Neil Gaiman made an announcement of this at an appearance at the New York Comic Con on 18 April, and the Comic Book Legal Defense Fund announced the details today, the 23rd.

Lee is the owner of Legends, a comic book store in Rome, Georgia. Back in October 2004 his store was giving away comics to trick-or-treaters, and accidentally included in the pile of books was a copy of Alternative Comics #2, an “art comics” sampler that included an excerpt of a story by Nick Bertozzi in which Pablo Picasso appears without clothes on. Nothing erotic or salacious about it, just drawings of a man who’s been interrupted painting in the nude (which is how the event being depicted to place). The book was given to a 9-year-old boy… though the prosecutors claimed at various points that it was given to his 6-year-old brother, or to both of them. Their mother filed a complaint with the police.

Lee apologized for this mistaken, but was charged with two counts of violating the state’s Distribution of Material Depicting Nudity or Sexual Conduct law (a felony), and five counts of violating the Distribution of Material Harmful to Minors law (a misdemeanor). The first law requires that material containing nudity must be delivered in a properly labeled envelope. The second says that retailers can’t give materials containing nudity (or any kind) to a minor.

Two of the misdemeanor counts were for unnamed victims other than the kid(s) identified in the main complaint, and those were eventually dropped, along with the felony charges. A judge then dismissed those counts “with prejudice” (effectively finding him “not guilty” but without a trial), and consolidated the misdemeanor charges down to two.

The law he was being charged with prohibits “distributing a book, pamphlet, magazine, and printed matter containing pictures, drawings and visual representation and images of a person or portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors,” and knowingly furnishing a minor with materials “containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse and which taken as a whole is harmful to minors.” Which is a rather unusual description for drawings of a painter walking around with his penis hanging out.

Shortly before the case went to trial, the prosecution either demonstrated their incompetence or their shameless willingness to drag the trial out even longer with their mix-up of whether the comic was given to the 9-year-old, the 6-year-old, or both. With the details changed, the pre-trial work all had to be redone, costing the Lee (and the CBLDF) more money and time. Later, they refiled the charges to be reviewed by a grand jury, which they should have done in the first place, again sending the defense back to square one. According to Neil Gaiman (a perennial supporter of the CBLDF) the prosecution deliberately caused a mistrial because they didn’t like the jury that had been seated for the case.

The basic argument in Lee’s defense is that he didn’t do what the law describes. The comic was not sexually explicit etc. by any reasonable definition. The backup argument is that, if the law says that this comic is unlawful to give to minors, then the law is unconstitutional, because it’s overly broad and arbitrary, making it impossible for any ordinary person to figure out what’s lawful and what isn’t.

That argument didn’t get fully tested in this case. The charges were dismissed not by the judge ruling against the charges or even against the prosecution, but by the prosecution voluntarily dropping them. While they were waiting for a trial date - and signficantly, while a motion was pending accusing the prosecution of misconduct - the prosecution offered a deal: they’d drop the charges if Lee would write a letter of apology. Since he’d been willing to do that since the incident happened, he agreed to do it, and the whole case is now over.

This is good for Gordon Lee, no question. Looked at in isolation it’s a victory. But it’s an incomplete victory, for a few reasons. Broadening the scope a little, it leaves the prosecutors in Rome with little more than egg on their faces, when by the accounts of the CBLDF they’ve been guilty of misconduct, for which they should be held accountable. And looking at it from the perspective of its legal precedent, it has none. Because the case didn’t go all the way to a decision, it doesn’t go on record to clarify what the law is supposed to mean. And it doesn’t invalidate the law as unconstitutional. Of course both of those are best-case scenarios, and it’s possible that the court would have ruled against free speech on either question.

Understand: I’m not criticizing the CBLDF for taking this deal from the prosecutors (and then pushing them to live up to it after they offered it). It was the best outcome for Lee, which was the central issue in defending the case. And even though it doesn’t set a binding judicial precedent, it does set an informal precedent, showing other prosecutors around the country that harmless folks like Gordon Lee are not easy targets to help them curry favor with their bosses or the voters, that there are folks like the CBLDF and their supporters who will fight back.

The CBLDF spent about $100K defending Lee in this case, by the way. If you can afford to support them, please consider doing so.

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