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Behind the Cartoon Shield: The Comic Book Legal Defence Fund

You probably know that a court can prevent shops from selling certain materials. Did you also know they can prosecute retailers for selling adult comics to other adults? That retailers can be prosecuted and convicted for selling obscene material even if those comics are in a separate part of the store from regular comics? Did you know that law enforcement and the District Attorney's office can make life very difficult for a private individual, for selling comics that are not obscene to minors? Did you know they can prevent you from drawing or creating anything, even if it's for yourself in your own home?

You'd know all these things if you follow the thrilling exploits of the Comic Book Legal Defense Fund. You'd also know that sometimes, but not always, justice wins out over stupidity and repression.

The CBLDF (as it is fondly known) is the torchbearer for protecting First Amendment rights in the U.S. comic book industry. They are at the forefront of many legal battles, fighting for retailers, artists, or indeed anyone in the business of creating comics who gets in trouble for exercising their freedom of speech. The Fund is favored by many celebrity supporters.

Author Neil Gaiman is a board member, and a very vocal supporter of the CBLDF. He often hypes them on his blog, takes questions from readers, and explains what it's all about:

"The most interesting thing about the CBLDF is that it is an unbelievably broad church politically -- from far left to far right to Moderates and Don't Knows and Out on the Absolutist Fringes; the only thing that unites the members (and the board, and the board of advisers) is faith in the medium, and in the First Amendment."

Other celebrity supporters of the fund include Dave Sim, creator of Cerebus, and Scott McCloud, creator of Understanding Comics and major proponent of comics as an art form. McCloud has even served as an expert witness for the fund in this regard, testifying to the artistic value of comics as a way to battle charges of obscenity. Peter David, writer for The Incredible Hulk, Supergirl, Aquaman, and a column in Comics Buyer's Guide (as well as the author of several Star Trek novels and many other works) is also a CBLDF board member and aids in fundraising.

Chris Oarr, former Executive director of the Comic Book Legal Defense Fund, sheds some light on why people who aren't United States citizens (such as Gaiman and Sim) might support an organization like the Defense Fund. In a 1998 interview at Sequential Tart, he stated:

"Well, both of them have a large stake in the American market. But more importantly they both value comics as an art form and they are both willing to fight for freedom of expression. Neil Gaiman has mentioned many times that in England there is no guarantee of free speech. And Dave Sim has often seen comics stopped at the border to Canada. It's funny; most comics are printed in Canada now. So they get shipped to the US and then get stopped going back into Canada."

Not all the big-name folks who support the Fund come from the world of comics. Prominent First Amendment attorney Burton Joseph, Legal Counsel to the CBLDF, has been a part of the Fund's work since their very first case. He was called in to handle the appeal on the 1986 case against retailer Friendly Frank's. In 1994, he officially joined the Fund as Legal Counsel.

The 1986 obscenity case was the spark of creation for the CBLDF. The manager of a comic store in Lansing, Illinois called Friendly Frank's was arrested for selling adult comics to adults. Undercover officers decided that seven out of fifteen comics they had purchased from manager Michael Correa were obscene. He was convicted by a local circuit court judge, but the conviction was overturned on appeal. Most of the money for the appeal came from comic publishers, retailers, and fans banding together to support Correa's rights and their own.

In 1990, the Fund was officially incorporated as a non-profit organization with money left over from the Friendly Frank's trial. Since then they have aided in the defense of many retailers and artists, usually in trials wherein some comic has been deemed obscene.

One case in 1999 involved a 36 year-old social worker who lived and worked in a West Virginia community. He was put on trial for "knowingly distributing obscene materials to a minor" after selling copies of Elfquest: New Blood to some neighborhood boys. The man's comic retailer suggested he contact the CBLDF. Thanks to the help of the Defense Fund, the charges were dismissed at a preliminary hearing, largely because the scene in question (a depiction of a birth in a supportive tribal environment where the mother giving birth was nude, though only her breasts were visible) fails the Miller test for obscenity on all counts. This three-prong test is set out in the United States Supreme Court's decisions in Miller v. California, 4l3 U.S. l5, 24-25 (1973), Smith v. United States, 431 U.S. 291, 301-02, 309 (1977), and Pope v. Illinois, 481 U.S. 497, 500-01 (1987)). The scene in contention fails because there is no lewd exposure of genitalia, no appeal to prurient interest, and the work as a whole clearly has artistic and literary merit. In this case, the CBLDF not only paid the defense counsel's retainer and court fees in this case, but also maintained the defendant's anonymity, because even being involved in such a case could hurt his career as a substance-abuse counselor.

Not all cases have gone so well for the CBLDF. In 1997, Mike Diana, creator of a controversial, self-published 'zine called Boiled Angel, was unable to appeal his obscenity conviction in the state of Florida when the Supreme Court denied his petition "without comment". Diana, who - with the help of the fund - had appealed his conviction twice in Florida's state appellate court, and managed to get one of three obscenity counts overturned. He was sentenced to a three-year probationary period during which he had to perform community service and pay a fine. Also as part of his probation, his home was subject to inspection, without warning or warrant, to see if he was in possession of or was creating obscene materials.

Boiled Angel graphically depicted some of the more disturbing and gruesome problems in our society, such as rape and child abuse. Some of his most unsettling stories are from real life, as he described in an interview
given around the time of his first appeal:

"Those ideas are mostly from the TV news and the newspaper, like the "Babyfuckdogfood" story, where he puts the baby in the meat grinder. I got that idea from this case in New York where this stepfather kills this baby on accident ... hits it too hard and killed it. He cuts the baby up to get rid of the evidence and feeds it to the dog, and then they found out about this somehow, put the dog to sleep and cut it open. Well, some people when they read that, they're just desensitized or something. They don't think about how it actually happened. That's why I drew it, so you could see it for real. And I know a lot of people are bothered by that and they say 'Well how could you draw this?' and I say, 'Well, that's something that really happened ...'"

A more recent blow to the Fund was this year's end to a case in Texas, where store manager Jesus Castillo was convicted of selling obscene material and sentenced to 180 days in jail and required to pay a $4000 fine. His case went through two appeals at the state level without being overturned, and the CBLDF tried to push the case all the way to the Supreme Court. The court denied Castillo's appeal, and he paid the fine and, due to a suspended sentence, is serving a year's probation rather than any actual jail time. The legal process for this case spanned several years.

Like many of the Fund's cases, the Castillo case came about partly because it was an election year for a local official. Many of the obscenity trials the CBLDF aids in are the direct result of a political push to "protect" children. Comic books, despite the underground comic revolutions of the sixties and seventies, are still believed to be primarily for children and are treated as such in a court of law. The fact that the vast majority of comics are now purchased and read by adults doesn't seem to alter this perception.

The current Executive Director of the Fund, Charles Brownstein, addressed this problem in a recent interview regarding the Castillo case,

"The truth is that fighting the right battles is not a guarantee of winning the right battles. Especially given the current American political climate wherein we're seeing more precedents and more laws being created to actively attack and actively censor certain materials."

Or as Castillo succinctly put it in an interview of his own, when asked what advice he'd give to other retailers: "I guess it would be---get rid of your X-Rated comics--we don't sell that type of material anymore. Unfortunately, it's the only way I know to avoid the situation in Texas, at least."

In a recent move to help avoid problems in the future, the CBLDF joined The Media Coalition, a national group of organizations that defends first amendment rights of creators and retailers in a variety of media: books, magazines, video games, videotapes, and now, comic books. Membership in the Coalition gives the fund the ability to track legislative bodies' and the courts' actions on first amendment laws and issues, as well as affording the Fund more clout in the national arena.

In light of the current political climate, the infringement on first amendment freedoms may continue and increase. Fear of terrorism makes it easier for officials to censor any media without anyone thinking twice. And with invasive, sweeping tools such as the powers granted by the Patriot Act, it will be more and more difficult for any anti-censorship bulwark to stand, particularly in court.

The CBLDF, recognizing this, has recently joined an amicus brief in support of an ACLU challenge to section 215 of the Patriot Act. Section 215 gives the FBI access to the records of almost any person, organization or business in the course of an investigation of terrorism or espionage - regardless of whether that person, organization or a member of an organization, is even suspected of committing a crime. The request for a search under this section is held in a secret court, making it impossible for the individual or organization to object to the search on first amendment grounds.

One of the Fund's main activities, perhaps the main activity, is fundraising. As Neil Gaiman once characterized it: "The CBLDF is always after people for money. This is because the price of liberty in the US is not just eternal vigilance, but it's also cash on the nail to lawyers, to fly in expert witnesses, to all that stuff."

The sheer volume of cash required isn't always easy to come by. Fundraisers have included parties, movie showings, merchandise sales, eBay auctions and, of course, outright donations. Former Executive Director Chris Oarr may not have seen a plethora of cases go through while he directed the fund, but his aggressive fundraising during his three-year tenure allowed the CBLDF to pay off all outstanding debts incurred in previous cases. His fundraising efforts included a comic-oriented cruise and reading tours by author Neil Gaiman.

The primary source of funding for the Comic Book Legal Defense Fund is membership. If you're interested in becoming a member or in checking out what the benefits of becoming a member are, check out their webpage at http://www.cbldf.org.

Though the Comic Book Legal Defense Fund has experienced its share of setbacks as well as triumphs, overall, their work has set and continues to set important precedents for First Amendment rights. In spite of occasional losses, the Fund is doing important work in fighting for freedom of speech in a medium that has fewer champions than it deserves.