Jeff Trexler, Executive Director of the Comic Book Legal Defense Fund, provided a update on ongoing legal issues affecting retailers at the ComicsPRO Sneak Peek event on February 5.
Trexler briefly discussed the case of a comics retailer in North Carolina who was arrested for making a copy of Grendel Tales Featuring Devil’s Hammer #1 (see “Comics Retailer Charged with Felony”). The next hearing in the case is on February 19, and the retailer does have a public defender. “It’s disturbing that it got to the level of an arrest, rather than just a warning or accepting an apology,” Trexler said. “There are certain individuals in the community who were determined that there’d be maximum punishment for this.” He cautioned retailers to be very cautious on Free Comic Book Day, to pay attention to ratings and know the contents of the books they are distributing (see “The Risks of Free Comic Book Day”).
The North Carolina case is troubling on another level as well: “There’s something deeper here,” Trexler said, “and that is the fact that this case is going to trial in North Carolina on the basis of its obscenity law statute… There are prosecutors in states around the country who believe that obscenity laws should be applied to mainstream graphic novels and manga that have sexual content and are either directly accessible to kids or even visible to children, so why we’re taking this so seriously, beyond the fact that a retailer is facing this horrible, horrible thing, is that this North Carolina case is emblematic of how the concept of what is obscene as to minors is expanding. It’s expanding radically.”
Book-banning activists are focusing heavily on graphic novels, Trexler said, and in court cases, the briefs regularly feature excerpts from graphic novels. “They want that to be the first thing the judge sees,” he said. Furthermore, activists are trying to change the obscenity laws to make it easier to prosecute people for creating, possessing, or selling materials they object to. Trexler pointed to Texas SB 20, which has already had a chilling effect (see “Texas Retailer Pulls ‘Dragon Ball’ Due to New Law”). The bill, which passed the Texas legislature unanimously despite opposition from the CBLDF, criminalizes depictions of people who appear to be children in sexual situations. “Even if there’s no chance that it could survive a prosecution if somebody were to bring it, it’s a very expensive and long process to actually show that you’re not guilty,” Trexler said, pointing out that the Friendly Franks case that led to the founding of the CBLDF (see “Heritage to Auction Art from Original CBLDF Porfolio”) took three years to resolve. “That was a lot of time and a lot of money, and prosecutors know this,” Trexler said. “The people who want these books off the marketplace know this.” The CBLDF is working on guidelines to help retailers stay safe amidst these legislative efforts, he said.
Activists are also trying to whittle away at the three-pronged Miller Test, particularly the provisions that a work must be judged in its entirety, not just by a single image (see “Publishers Sue Florida”), and it that a work is not obscene if it has literary, scientific, or other value. “And then the big one, the huge one, was that the constitutional protections with regard to the obscenity standards only apply to text. They don’t apply to images,” Trexler said. “That’s not the law yet, but that’s what they’re trying to get passed in a number of states.”
Trexler ran through some other proposed legislation. The CBLDF has been active in opposing legislation in West Virginia that would make it a crime to display transgender material where a child could see it. Utah has proposed a 7% tax on books and other material that are considered harmful to minors. The Texas legislature has attempted to make it possible for any individual to sue a retailer for selling material that person considered offensive. Another Texas bill that would have required vendors to provide content ratings for all materials sold to schools has been blocked by a judge with a permanent injunction (see “Court Stops Texas from Moving Ahead with Book Ratings Requirement”).
One case with particularly serious ramifications is the Fifth Circuit decision that holds that the First Amendment does not apply to libraries. The Supreme Court declined to hear the case, so the ruling stands for now, meaning that a book can be removed from a library for any reason without First Amendment protection. “We’re currently fighting to stop the spread of that precedent in states across the country,” he said.
There are some steps retailers can take to protect themselves. “For your retail store, a lot of this is going to come down to design,” he said. In some states, material that may not be regarded as obscene for adults may be deemed obscene as to minors. “If you’re in a state where a law has been passed that has made it easier to prosecute ‘harmful to minors,’ or you have some aggressive prosecutors who are trying to expand the boundaries of the current law, then you’re going to want to be extra sensitive to the store design when it comes to how you make certain things available,” Trexler said. In one case the CBLDF is working on, the complaint was that a child in the children’s section of the store could see adult material in other parts of the store. “I don’t know if that’s going to that would end up being a viable prosecution, but that’s question that I’m having to work on right now,” he said.
Trexler said he hopes to start a weekly newsletter soon and also provide resources such as checklists for retailers. He also encouraged retailers to reach out to the CBLDF to let them know of issues in their area.
Source: ICv2
