Archive for the ‘Free Press’ Category

Indiana comics shops have to register as “adult bookstores”

Friday, May 9th, 2008
Free Press

There’s a law going into effect July 2008 in Indiana which will require any store which sells sexually explicit books to register with the state, with a charge of $250. The state will then notify the store’s local government (county, city, zoning boards) of the store’s registration. Selling “sexually explicit” material without registration will be a Class B misdemeanor, punishable by up to 180 days in jail, and up to a $1000 fine.

The sponsor of the bill says, “I wrote this bill in response to a situation in my district where a store gave residents the impression it would be selling books, movies and snacks. Instead, the store opened selling sexually graphic products. If the retailer had to register with the Secretary of State beforehand, the residents could have been notified of the store’s intent and petitioned to keep the retailer out of the community.”

In other words, if a new comics shop is going to stock Eros books such as Birdland and Ironwood behind the counter, or even if they’re planning to fill special orders from their customers for books from the Previews Adults Supplement, they’ll have to register ahead of time with the state, and face opposition from neighbors who think this means they’re getting a porn shop (which are always assumed to bring illicit sexual activity and crime in their wake).

The law is being challenged in court by the ACLU of Indiana, American Booksellers Foundation for Free Expression, the Media Coalition, and of course a bunch of Indiana booksellers. They argue that this registration requirement amounts of a restriction of free speech, and a violation of the First Amendment.

Dark Horse challenges Oregon censorship law

Thursday, May 1st, 2008
Free Press

Dark Horse Comics and the Comic Book Legal Defense Fund are two of the plaintiffs suing the state and counties of Oregon to block a new law banning the sale or other distribution of certain material to children, and another applying even harsher penalties for “sexually arousing” material provided to teenagers. The law went into effect in January 2008.

The first law (ORS 167.054) prohibits (among other things) selling books containing any “sexually explicit” material to a child under the age of 13. The law defines this to include masturbation, sexual intercourse, and various combinations of objects and body parts that are commonly involved in having sex. This sounds reasonable, and is obviously well-intended. However, even though the term they use is “explicit”, the language of the law isn’t that precise. It refers to any “material containing visual images of: (a) Human masturbation or sexual intercourse,” which could easily include a picture of two people intertwined… but with no naughty bits visible.

The second law (ORS 167.057) applies to materials provided to anyone under the age of 17. It’s a little better in one sense, because it attempts to take into consideration what the purpose of providing the book was: it has to be with the intent of “(A) Arousing or satisfying the sexual desires of the person or the minor; or (B) Inducing the minor to engage in sexual conduct.” In case (B) the person is trying to commit statutory rape (Oregon’s age of consent is 18). But case (A) would mean that showing a dirty story to a 17-year-old to get him sexually aroused is illegal. So much for letting 17-year-olds into movies like American Pie or Porky’s.

Dark Horse is involved in this suit because they are based in Milwaukie, Oregon (a suburb of Portland) where they also operate a store. The CBLDF is involved on behalf of comics shops in Oregon, and cites Watchmen (stocked in all the good ones) as a book which would be restricted under this legislation. The other plaintiffs include several Oregon booksellers (including Powell’s, one of the largest used book stores in the country), the Cascade AIDS Project, Planned Parenthood, the Association of American Publishers, and the ACLU.

The law provides a few exemptions to protect schools, public libraries, medical professionals, and other such institutions, but it doesn’t protect booksellers in any way. This means that a book that’s perfectly legal for a 12-year-old to read in a lesson about human sexuality in school, would be Class A misdemeanor to let him browse in a bookstore. This could result in up to one year in jail and/or a fine of up to $6,250. Similarly, a book that is perfectly legal for a 17-year-old to pick up on his own read (and become aroused by), could be a Class C felony for someone to give to him. That could result in up to five years in prison and/or a fine of up to $125,000.

Furthermore, the law for under-13s doesn’t provide any exceptions for works in which the “sexually explicit” material is just a small portion of a larger work. The book in the case brought against Gordon Lee didn’t meet this “sexually explicit” standard (Picasso was nude but the images were not in any way sexual), but that’s an example of the kind of thing that could happen: a few images hidden in a larger book could make it illegal to furnish to a 12-year-old. Similarly, there’s no exemption for the overall “merit” of the work (like there is for determining “obscenity”); a book with a brief scene of sexuality used in a cautionary context for children would be judged the same a titty mag. Powell’s has millions of books on the shelves, and smaller stores generally have much smaller staffs, which could never hope to screen all of their books for this kind of material. It places an “undue burden” on them.

There’s also the problem that the one law sets the age of 13 as the limit. Most 13-year-olds (or 15-year-olds, and even some older teens) don’t carry any proof of their age. The law allows a person to use the defense that he “had reasonable cause to believe that the person” was more than 12 years old, but that’s up to the jury to determine or not. The only way a bookseller could be safe would be to require proof of age, which would effectively raise the age limit to 16. This is an example of what legal experts call a “chilling effect”, in which a vague law that could be applied carelessly effectively forces people to shy away from doing things that would (probably) be legal.

Both of these laws have noble goals: protecting minors from things they aren’t emotionally ready for. But they go farther than is really needed. Furnishing a 12-year-old with a book about human sexuality isn’t necessarily an attempt to abuse him or her, and furnishing a 17-year-old a book in which human sexuality is depicted as arousing, for the purpose of letting her or him enjoy it, isn’t necessarily an attempt at sexual molestation. It could simply be about providing harmless entertainment or education, and that shouldn’t be outlawed.

More info can be found in The Portland Tribune and the ACLU of Oregon websites.

Gordon Lee case dismissed

Saturday, April 19th, 2008
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.

Michigan & Arkansas suspend “hide the smut” enforcement

Tuesday, February 17th, 2004
Free Press

An article in the Detroit News reports that Michigan’s prosecutors have agreed not to enforce the provisions of a new law which requires books and magazines to be blocked from the view of minors if they happen to contain sexually explicit material “harmful to” them inside. An article on Newsarama indicates that the US District Court has instructed prosecutors in Arkansas not to enforce a similar law being challenged in that state.

But don’t pop the cork on the champagne yet.

Neither law hast been repealed. In Michigan this is just the prosecutors agreeing not to use it, and in Arkansas the court telling them not to. Meanwhile the lawsuits challenging their constitutionality are still pending. It’s an encouraging sign, because it shows some reluctance on the Michigan prosecutors’ part to be named as codefendants in an actual test case, and it’s a clue how the court is inclined to rule in the Arkansas case. But if either court upholds either law, you can be sure some of these prosecutors will add it to their arsenals for later use.

I suspect the courts will pick apart the most illogical and poorly-written parts of the laws (such as the Michigan law’s requirement to restrict covers based solely on the hidden contents of the book), and the rest will stand, as a slightly less dangerous weapon… but a weapon nonetheless.

Zero tolerance for juvenile speech

Saturday, November 15th, 2003
Free Press

Speaking of Michael Sangiacomo (or “Mike SanGiacomo” as he’s known when writing comics rather than acting as a newpaper journalist), his latest “Journey Into Comics” column tells about a 12-year-old boy in Worthington OH (a suburb of Columbus) who’s facing possible expulsion from school over violent comics he drew. His school has a “zero tolerance” policy regarding violent statements. Note: “zero tolerance” should be pronounced the same as “zero intelligence”, because that’s what such policies really amount to. (That principle holds true whether it’s a policy about drugs, alcohol, weapons, etc. But I’ll stick to the free speech aspect here.)

There’s no actual civil or criminal charge involved here. The police chose not to get involved, so it’s “just” a school policy matter. Still, the school is acting - as schools generally do, whether public or private - as a de facto sub-local government. The courts have ruled that students do not have the same level of First Amendment protection at school that people have elsewhere. This case is an example of that authority in action.

Sangiacomo’s headline “AND WHEN THEY CAME FOR COLUMBUS…I DID NOT CARE…AND WHEN THEY CAME FOR ME…?” (a reference to the famous parable by the Rev. Martin Neimöller, about how fascism can take over) is a little hyperbolic, but the point is a valid one. This is just a kid, in some ‘burb in Ohio. But if his rights to express himself are limited without anyone stepping in to defend them, it becomes easier for the next limitation to be imposed.

Despite what it says in the U.S. Constitution, free speech has never been regarded as absolute under U.S. law. There have always been limits placed on it, usually with some kind of appeal to common sense attached. The oft-quoted “yelling FIRE in a crowded theater” situation is one example. There’s by no means universal agreement on this point, but the majority opinion seems to be that threats against someone’s life or safety should not be protected speech. That makes sense.

But when “zero intelligence” standards are attached to that (or any other) notion, common sense is left on the doorstep. So you have people (especially students) disciplined for using cold medications containing small quantities of alcohol or mild narcotics, for bringing a brightly-colored squirt gun to school, or (in this case) for drawing cartoons in which he fantasizes about the death of a teacher or other authority figure. By no reasonable standard are these examples of substance abuse, weapons, or credible threats. No actual harm is done by any of these. The rules which criminalise them lack common sense.

The only harm done when a kid violates a “zero tolerance” policy is to undermine the authority of the letter of the law. I would argue that the spirit of the law is more important. After all, the letter of the supreme law of the land says simply that the government shall pass no law… abridging the freedom of speech. But common sense tells us that there have to be exceptions. Common sense should also tell us that those exceptions need exceptions as well.

See the Associated Press story for info about the case.