Strange Eggs

Friday, May 13, 2005


The Comic Book Legal Defense Fund came away a winner in South Carolina this week – with a little help from its friends. Joining a broad coalition representing everything from booksellers to an obstetrics practice, the CBLDF gained a crucial victory over South Carolina's Harmful to Minors Law. On Monday U.S. District Court Judge Patrick Michael Duffy struck down the law, and a key amendment that expanded the law to include on-line material, as unconstitutional.

Under the statue, the state would have been able to bring criminal sanctions against those who disseminated "harmful material to minors" online, defining the term "material" to mean "pictures, drawings, video recordings, films, digital electronic files, or other visual depictions or representations but not material consisting entirely of written words." The felony would have been punishable by up to 5 years in prison and a fine of $5,000.

According to CBLDF Executive Director Charles Brownstein, the law represented a major threat to the comics community. "There were significant risks to retailers of comics and cartoonists who create content online," Brownstein told the Pulse. "The law would have threatened, for instance, a web retailer posting the covers or sample pages from books like The Complete Checkered Demon, A Child's Life, Like A Velvet Glove Cast In Iron, and Popbot. It would have threatened art dealers displaying original pages for sale that depict sexually explicit nudity that could be harmful as to minors. These are instances of protected speech facing a serious content restriction because of the law's overbroad wording."

The law might have also enjoyed a significant effect on the Internet comics community. "Likewise, web comics like Patrick Farley's Delta Thrives, Nick Bertozzi's The Salon, and much of Donna Barr's work, all of which contain some degree of nudity or sexual content could have been vulnerable for prosecution." Brownstein said. In the end, the costs could have kept artists of all types from risking certain kinds of creation for fear of being penalized. Brownstein explains: "And the penalties were so significant -- a felony charge carrying the penalty of up to 5 years in prison, a fine of $5,000, or both -- that the possibility for speech to be chilled by artists and retailers censoring themselves rather than face prosecution was a real danger."

The basis of Judge Duffy's decision seemed to be that the amendment violated the First Amendment because it failed to employ the least restrictive means from keeping minors away from harmful material on the Internet. The judge also noted that the law impinged on Congress' ability to regulate interstate law – asserting South Carolina had the right to pursue cases against legal businesses in other states according to what was accessible in the state in which the law was passed – and expressed concerns that the law would not keep minors from preventing material outside the U.S.

State Attorney General Henry McMaster disagreed with the Judge's decision in published reports, saying that the thread of prosecution would be much more effective than any filtering method, because they could be circumvented. "We think it's important in today's society that law enforcement take a strong view on obscenity aimed towards children," he told the Associated Press. In fact, Duffy's decision allowed that the protection of minors was in the state's interest – Brownstein also allowed this in talking to the Pulse – but that the amendment was unconstitutional despite that interest and therefore had to be struck down. McMaster's office will review the decision before deciding if the state will appeal.

Duffy also singled out a credit-card based verification that the state had proposed to block minors from the offending material as "too burdensome."

The South Carolina victory was a long time in coming. The law in question was expanded to include electronic files four years ago, and challenged before a single person could be prosecuted. Six other states have lost challenges to similar legislation, attorney for the plaintiffs Michael A. Bamberger told reporters Thursday. All of those challenges are beginning to add up to a solid Federal denial of such state laws. "Most of this generation of Internet censorship laws are dead," Brownstein confirmed to the Pulse. He was able to name several cases that had previously gone the Fund's way. "Media Coalition, and the Fund by extension, participated as amicus or plaintiff in both COPA and this one, Media Coalition has also led successful challenges in Vermont, New York, Virginia, New Mexico, Arizona, and served as amicus on a Michigan law of this nature."

CBLDF' fellow plaintiffs in South Carolina were the Southeast Booksellers Association, Print Studio South, the American Booksellers Foundation for Free Expression, the Association of American Publishers, and Families against Internet Censorship. The coalition was represented by David W. Odgen, Janis C. Kestenbaum, and Kenneth A. Bamberger of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; the aforementioned Michael A. Bamberger of Sonnenschein Nath & Rosenthal LLP, New York City; and Armand G. Derfner and D. Peters Wilborn, Jr. of Derfner, Wilborn & Altman of Charleston.

The CBLDF's Other Kind Of Advocacy

The win in South Carolina calls attention an increasingly important and vital aspect of the Fund's activities, that is, participating in challenges to unconstitutional laws in conjunction with other Free Speech organizations. Although not as highly publicized and not as easy to understand as when the Fund provides direct legal help to a retailer in danger of being convicted of a criminal offense, Brownstein firmly believes that this kind of work is just as, if not more, important as the more traditional CBLDF cases. "A maxim I repeat so much as to drive reporters like yourself nuts is that it's better to prevent a case than defend a case, and participation in these sorts of cases can help to prevent an actual prosecution that would require thousands of dollars and a lot of human misery to defend."

Brownstein also stressed that decisions to participate in such cases are hardly made in vacuum. Asked if South Carolina and other comics businesses are kept apprised on such cases, Brownstein said, "Yes, we're in regular contact with the retail, publishing, and creative communities on these matters, and generally find them supportive of our participation in challenges such as these." Brownstein pointed out that the way the Fund operates, with votes on all maters from the board, also means that the comics community's interests are solicited in this most direct manner possible. "Don't forget also, our board of directors, who vote on whether or not we will join one of these cases, represent a diverse cross-section of the business community, including retailers, creators, publishers, distributors, and a lawyer, so our participation in these cases is always a result of the Fund's board in their capacity as representatives of the business community we serve communicating that they see a need for us to weigh in on a case."

The South Carolina case did not represent a specific expenditure for the Fund. "The Fund participated in this case under the aegis of our membership in Media Coalition," Brownstein said, "And so there was no additional expense for participating in this case beyond our annual member dues."

What's Next?

With the Internet challenges beginning to die down, Brownstein says the next group of important advocacy work could take place "along the lines of violence and harmful to minors display provisions. We beat the Michigan and Arkansas harmful to minors display laws last year, but there's always one or another in committee that could actually get legs."

Brownstein pointed out one scenario under which these sorts of laws might become an issue. "What's probably most disturbing right now is a set of laws in Michigan that are seeking to restrict video game violence, but one of which attempts to apply a legal definition to 'ultra violence' as harmful to minors that would certainly be a threat to comics, movies, video games, and a wide variety of expression. Violence has never been proven to be obscene or harmful, but there's always someone trying to make that happen.' Brownstein noted that the Fund will be active in watching these cases, but take action according to what the individual situation calls for. "Now, we're not a lobbying group, so the best we can do is keep an active watch upon those laws and, when appropriate, such as this South Carolina case, participate in a constitutional challenge."

Brownstein cited as specific cases on the advocacy end Muslim Community Association of Michigan v. Ashcroft, an ACLU challenge to the PATRIOT Act as "stagnating in the courts, and Lyle vs. Time Warner as "still developing," concluding, "So there's not much on our advocacy docket, but I think we're at a bit of a calm before a major storm."

The Fund's Executive Director also mentioned that the full attention of the Fund remains on the ongoing retailer's case in Georgia.

"We remain ever vigilant and ever watchful." Posted by Hello

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