One summer day in 2004, a small press company called Alternative Comics engaged in a wide-scale free distribution of a comic book, Alternative Comics #2, a sampler of sorts from various comics published by the company. Alternative sent the comic out as part of Free Book Day, mailing copies of their sampler issue to comic book shops across the country.One of the shops that received promotional copies of Alternative Comics #2 was the Legends comic shop located in Rome, GA. Around 25 copies of the Alternative comic were handed out to store patrons with no problems or complaints.

“Of course,” you may be thinking, “why would there be a problem with handing out a free comic book?”

Hold that thought.

Included in the sampler issue was a section of a graphic novel called The Salon, by author/artist Nick Bertozzi. The portion of The Salon included in Alternative Comics #2 begins with a depiction of the artist Georges Braque being led into Pablo Picasso’s studio by a nude model.

Picasso, the model explains to Braque, is fully engaged in his art – “he’s in there masturbating,” she tells Braque. Picasso, also depicted fully nude, is angry about Braque for interrupting his work, until he realizes that Braque is a fellow artist, at which point Picasso, still nude, embraces Braque.

“So what,” you ask?

Well, several months following Free Comic Book Day, a single copy of Alternative Comics #2 was (according to the shop’s owner and his attorneys) accidentally included in a stack of comics set aside as part of a Halloween promotion, in which Legend gave out free comics to kids from the surrounding neighborhood.

Unfortunately, the particular stack of comics that included Alternative Comics #2 was passed along to a nine year-old boy, marking the beginning of what is, in my opinion, one of the most absurd obscenity cases in recent American history.

The owner of Legends, Gordon Lee, found himself facing a variety of obscenity-related charges, including felony counts of dissemination of unsolicited nudity or sexual conduct, and several misdemeanor charges of distributing materials considered “harmful to minors.”

Lee’s case was taken up by the Comic Book Legal Defense Fund (CBLDF), which has since spent in excess of $70,000 defending him. Lee has faced three separate sets of charges related to the incident, according to the CBLDF.

The CBLDF hired Atlanta-based civil liberties attorney Alan Begner to head up Lee’s legal team, a team that has successfully knocked down five of the seven charges entered against their client. The defense team moved to have the entire case dismissed, arguing that Georgia’s statute related to distribution of material “harmful to minors” is unconstitutional, a motion to dismiss based on prosecutorial misconduct, and a variety of demurrer motions and motions to quash.

The court heard the defense motions in October of last year, and dismissed them all.

The court found that the current charges are the third “reincarnation” of the action brought in 2005 and dismissed Lee’s motions. The case is expected to head to trial, finally, early this year.

Leigh Patterson, the District Attorney for Rome, GA, has said that he doesn’t see this is as a First Amendment case, but as a case of child exploitation, despite the defense’s claim that Lee’s “distribution” of the comic to a child was accidental.

“I guess the main reason that we have the case is because the comic was distributed to a child,” said Patterson, according to an article published by TheBookStandard.com in September 2005.

Patterson says that the fact that the comic giveaway was part of a neighborhood Halloween “trick or treat” event, the event was specifically intended for children and, as such, the comic book shop owner should have exercised greater caution.

“There’s a big difference between a child sneaking into a Rated-R movie and a child trick-or-treating on Broad Street,” said Patterson. “I don’t think any parent would want their nine-year-old to look at something like that.”

Perhaps, but does the fact that a parent might not want their child to see a drawing of a naked man make that depiction “obscene?”

Might not a story – a historically accurate story, by the way – depicting Pablo Picasso and Georges Braque have “serious artistic value?”

““Picasso is not erect [in the depiction],” noted Begner in 2005, according to TheBookStandard.com. “I don’t see what is wrong with showing a kid a comic book of an event that’s factual. Are these Greek and Roman statues harmful to minors?”

Reasonable people can disagree about what varieties of artistic material are or are not appropriate for children to view and there is certainly ample cause for concern (and for prosecution) when an adult knowingly and intentionally distributes sexually explicit materials to minors.

Do the frames from The Salon included in Alternative Comics #2 qualify as “sexually explicit?” I suppose, strictly speaking, that they do qualify as such. Should the accidental exposure of those images to a child be viewed in the same light as knowingly exposing a minor to hardcore pornography? That seems to me an entirely outlandish notion.

What has transpired here seems more appropriately resolved by an apology, perhaps a minimal fine, if only to encourage greater attention to detail in the future should Lee contemplate doing another free comic giveaway geared towards children.

Could it be that something more than an interest in the protection of children is at work here? Begner thinks it’s possible that a desire for retribution may also be inspiring the prosecutor’s persistence in the case.

As it turns out, this is not Lee’s first run-in with the state where obscenity laws are concerned. In 1993, Lee was convicted of selling a “pornographic” comic book to an adult, in a case that wound up backfiring for the prosecution.

Attorney Paul Cadle, who is co-consul with Begner in defending Lee in the current case, also represented Lee in 1993. Cadle argued in the 1993 case that police had illegally seized hundreds of comics that they deemed “obscene” and then refused to return the comics. Cadle sued the city and district attorney’s office, eventually winning an $18,000 judgment, along with a court order requiring that the merchandise be returned to Lee.

Begner told TheBookStandard.com in 2005 that he though the current prosecution might be “in part retaliation” for Lee’s successful lawsuit in 1993.

Regardless of their inspiration or the technical legal merits (or lack thereof) of the case, prosecuting Lee as though he were some manner of sexual predator distributing pornography in furtherance of the exploitation of a minor seems to me an unbridled overreaction to what sounds like an honest mistake.

Had Lee intended to distribute material harmful to minors, wouldn’t one expect that other minors would have received sexually explicit materials as a result of the 2004 Halloween promotion? Doesn’t it seem more likely that someone simply missed the sexually explicit content of Alternative Comics #2, and included the comic in the giveaway by mistake?

Further, Begner’s point concerning whether Greek and Roman statues are “harmful to minors” strikes me as more than just a clever rhetorical device. Have we reached a point as a society where we are so consumed with “protecting” children that mere depictions of nudity – depictions that are themselves not photorealistic and involve the exposure of no actual human being – accidentally distributed to a child are worthy of a felony conviction?

One hopes that a jury of Lee’s peers will not fall prey to such irrationality.