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Frankenchrist Poster Case

October 18, 1987

As co-counsel for Jello Biafra in the recent "Frankenchrist" album case and a primary author of what City Atty. James Hahn has characterized as a "web of distortion," I must take exception to his letter (Sept. 29).

First, Hahn's cavalier dismissal of the idea that this case concerns "artistic endeavor" is nothing more than his opinion. The facts demand a different conclusion. I can assure Hahn and Times readers that, to the Academy-Award winning artist who created the painting (H.R. Giger), to every art editor who has included the painting in a book (and there are several), and to every museum and gallery which has exhibited the painting (and there are many), the work is a legitimate artistic endeavor and the prosecution of anyone for distributing a copy of this painting necessarily affects this artistic endeavor.

Second, this is and was a case with grave implications for the First Amendment. I can tell Hahn that Giger's representatives in this country, art school deans and professors who had learned about the case, were all incredulous when they heard about the charges. To them the case had blatant adverse implications for the First Amendment rights of artists in general, and in particular posed a threat to the future distribution of Giger's work. They understood that Giger had not been prosecuted, but they also understood that five people had been prosecuted for distributing Giger's work.

The court record in this case is clear. Hahn is correct that the initial trial court refused to grant the defendant's demurrer request to find that they had done nothing wrong. It is also true that two reviewing courts refused to overturn that ruling, a common practice in criminal demurrers where the court says the defendant has an acceptable remedy in an appeal should he or she be convicted. But it is important to remember that the only appellate court to issue an opinion did so in three sentences and basically said, "Give them a shot, but it's going to be tough to prove."

The city attorney's attempt to take those three sentences and turn them into the most tortured and expansive interpretation of the law was soundly rejected by the trial judge. And most important it was rejected by the jury, which brings me to my final point.

Hahn's letter demonstrates a "disspeak" worthy of the Washington "intelligence" community. It boggles the mind to describe a jury deadlocked 7-5 for acquittal as one which "could not unanimously agree with our position." By my count, the majority could not agree with his position.


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