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THE LAW IS A ASS for 09/11/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 112
Originally written as installment # 102 and published in Comics Buyer's Guide issue # 694, March 6, 1987 issue
Okay, an explanation. Why have I skipped Installment # 101--especially after spending the past two weeks going on and on about how I had changed numbering and all? Simple time.
Somewhere I lost most of mine this weekend and had virtually no time to get this column ready. For a variety of reasons, which aren't important here, Installment # 102 was much simpler to get ready than 101 would have been. So I jumped up to 102. It was either than or skip a week.
As it turns out the jump was timely--ironic as I made the skip because of a lack of time--but now that Marvel has announced it is abandoning the Comics Code Authority and is making its own rating system, well read on...
******
Here's the why.
Sometime in 1986, one of the largest comics retailers in Texas, announced that he no longer wanted to monitor his merchandise, so as to insure that the local youth did not buy comics which local standards dictated they should not buy. Instead, this retailer insisted that comic publishers develop a ratings system similar to the one used by the movies--a system which is about as successful as paper bumpers--and place it on the covers of their comics.
DC Comics, the second largest comic publisher, announced that it would impose such a ratings system on its books. It might just as well have lit the fuse on a case of dynamite.
The response was immediate and negative. My reaction--and the reasons for that reaction--are found in the installment which follows.
For the record, DC never did impose its proposed ratings system. I hope I had a little to do with it.
******
"The Law is a Ass"
Installment # 112
by
Bob Ingersoll
The question of a comics rating system and censorship is a much discussed topic in these pages, but one about which I have been silent. The why of my silence is not mysterious. I didn't feel I had to add my views. My views were being set out by other, and far better, writers than I. I didn't think I could add anything to the discussion. I also wasn't sure that the topic fit into the parameters of this column.
I was wrong.
Twice.
Numerous misconceptions about the governing principles of law implicated by such a ratings system as well as incorrect statements of facts have been made by both sides of this debate. I want to correct them.
The first misconception is that DC is practicing censorship with its new ratings policy. It is not. The word censor originates from the Roman census officers, whose duties included inspecting morals and conduct. In modern usage, censorship of the arts is the practice of outside influences scrutinizing works of art for anything which is, to the censor's mind, objectionable, questionable, or dangerous and then seeking to bar the work.
DC does not censor. It is not an outside influence. DC is a publishing firm. It purchases and publishes works of art. It has a right to establish editorial policies regarding what it will and will not publish.
DC's proposed ratings system is a statement of editorial policy as to what types of works DC will buy and under what circumstances it will publish them. Whether you or I agree with DC's decision to use a ratings system is immaterial. DC has the right to exercise its editorial policy by way of the system, and its doing so isn't censorship.
******
The second misconception, that I would like to correct, is that the comic creators or publishers have an absolute right to print and publish anything under the First Amendment of the Constitution and that any attempt to regulate their product or to prosecute them for that product deprives them of their constitutional rights. They do not. And it does not.
The First Amendment has never granted a absolute right to print or publish anything. Never The United States Supreme Court consistently holds that not all speech is protected under "Freedom of Speech." Speech that foments riot, for example or which advocates the overthrow of the government by force of arms or which creates an unnecessary risk of danger are just three examples of speech which the Supreme Court has ruled is not protected by the First Amendment. (The most classic example of that last is the oft-repeated "Yelling 'fire' in a crowded theater" line.) There are other types of speech which are not protected by the First Amendment. The type of unprotected speech most applicable to our topic is obscenity.
The Supreme Court has never wavered in its position that obscenity is not protected by the First Amendment. Unfortunately, the Supreme Court has never been able to draft a workable definition for obscenity either. Deciding what constitutes obscenity usually falls back on Justice Potter Stewart's famous observation that he didn't know what obscenity was, but he would know it, when he saw it.
The closest approximation the Supreme Court has ever made to a definition of obscenity is found in Miller v. California, 413 US 15 (1973), where the Court said a work is obscene when the average person, applying contemporary community standards, would find the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex or portrays sex in a patently offensive way, and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
What does that mean? I don't know. To be honest no one knows. We've spend the past almost thirty years debating exactly what Miller said obscenity was and have realized that we're no closer to knowing, then we were when the Supreme Court tried to tell us--without success--in Miller. But, while the Miller test did not supply a workable definition of obscenity; it did reaffirm the principle that obscenity was not protected speech under the Constitution.
Thus, states can prosecute persons who produce, publish, or disseminate obscenity without violating their constitutional guarantee of freedom of speech. Whether said persons are, in fact, producing, publishing, or disseminating obscenity is another question entirely.
******
The third misconception I would like to debunk is the belief expressed by certain comics retailers who want Marvel and DC to impose a rating system, because they don't want to have to police what they sell in their stores and insist that Marvel and DC do it for them. The belief is this: telling persons they cannot print something, because what they print offends your sensibilities, is not censorship, while telling public schools they cannot have organized prayer is censorship. I will deal with the second part first.
The school prayer cases say that the "Freedom of Religion" Clause in the First Amendment of the Constitution precludes the states from doing anything which establishes any religion, and that a public, state sponsored school establishes religion and violates the constitution, if it has organized prayers. If the school uses a standard prayer, then it establishes whatever religion drafted the prayer over other religions. If the state has no formal prayer and has only moments of silence in which those who are so inclined can engage in prayer, it establishes the concept of religion over the concept of atheism. Either way the school violates the Constitution.
The school prayer decisions weighed two competing constitutional principles, freedom of religion and freedom of speech, and decided that freedom of religion must prevail. Why? Because freedom of speech is not being infringed. Nothing in the school prayer decisions say that a person cannot pray in school. If one wants to pray in school, then one need only bow his or her head and pray away. The school prayer decisions simply mean that people pray by themselves at the time of their choosing, not at the time or place of the school's choosing.
There is no censorship here. The decisions don't tell anyone what he or she can or cannot say, think, or do. Rather, they tell the state it may not tell people what they must think or believe. How did that become a bad thing?
Removing books from library shelves is a form of censorship. So is forcing stores not to sell the books. So is exerting pressure on a publisher, so that it will not publish those works someone other than the publisher feels should not be published. All three entail outside forces imposing their views on freedom of expression. All three are censorship.
The final misconception, I wish to address is the belief that all censorship is bad. The practice of editing soldiers' mail during a time of war, so that it did not inadvertently reveal strategic information, for example, is a form of censorship which most would agree is necessary. Whether the censorship of comics is also good isn't what I care to discuss at this moment.
But now it's a new moment. I've been objective and analytical for several pages. Now, I want to give my personal opinions on the subject.
The practice of forcibly removing a work of art from public dissemination, because you find its content to be questionable, immoral, or dangerous is reprehensible. It has no place in a free society, where all viewpoints must have equal access to the public, so that the public can decide which view it will follow. If you do not agree with a certain view, do not force that view from the public eye; air your opposing view as artfully as you can, so that the public will choose your view and not the other. Any other solution posits both a haughty self-important belief that you know better than everyone else what is good for them and shows a disturbing lack of confidence in the ability of the common man to make correct decisions. After all, if the public rejects your position and follows the position with which you disagree, maybe it's you, not the public, who is wrong.
If you do not like a certain book, then don't buy it; I won't force it on you. But don't prevent me from buying it. I may like it, and you should not force your view on me. Ours is a free market. If enough people agree with you, the book will not sell and will be cancelled. If the book does sell, then the majority must disagree with you, and you have no right to impose your minority opinion on the majority.
I find the practice of a ratings system equally disturbing. To impose a ratings system on creators or make any other concession to the censors is to show weakness, which the censors will only use as a reason to increase their demands. To enforce a ratings system will ultimately prove unworkable and unwieldy. It may be the publishers' right to have the system. It is, however, a right I wish they would not exercise.
I find the whining of the parents, retailers and distributors, that they need a ratings system or other form of industry generated restraint as a guideline for what books their kids should buy appalling. It is an abrogation of responsibility, and a delegation of said responsibility to agencies which are not adequately equipped to handle it.
I am a parent. I presently engage in, and plan to continue, the practice of monitoring my children's media consumption. I am familiar with their emotional and intellectual development. If I feel that there is something that they are not yet prepared to process, I will not permit them to be exposed to it. For example, I do not intend to let my children read my upcoming Death Rattle story, "Child of the Media," for many years. Daddy may have written it, but that doesn't mean they will read it, until they are ready for it.
I also plan to discuss things with my children, so that their ability to process such material is at an optimum. In that way, if they should happen to see something, before I think they are ready for it, they're still protected. I feel that is a more responsible attitude than banning the material outright, so that the people who are able to process it have no access to it.
No one would deny me my right to determine what I think is appropriate for my children. Nor do I deny anyone else the same right. However, as I am the most familiar with my children's development, I am better qualified to decide what is appropriate for them than anyone else. For me to delegate this responsibility to and ask someone else to determine what is appropriate for my children is not proper. It is better that I allow the arts to do what it does best, produce the arts, and that I do what I do the best, raise my children.
When, for example, I watched Home Alone II with my children, I was disturbed the increased level of violence in the movie over the first movie in the series. The first movie showed some live action violence that was basically what we might call cartoon violence. Nothing really serious.. The second showed, in a live-action comedy, violence which was lethal. Electrocution. Hitting people in the heads with bricks thrown from three stories up. Dropping people down three stories onto hard cement basement floors. All of these activities--played for laughs by having a young child perpetrate them on adults--bothered me. Because all of them could kill someone. I didn't want my children thinking such actions weren't potentially lethal so talked with them about it and made sure they understood why the actions of Kevin may have seemed funny in the movie but would not have been if repeated in real life.
It's all a question of how the children process the information. The ability of a young child to see Wile E. Coyote fall several hundred feet in an animated cartoon, land in a puff of smoke, and have his body turn into a bandage-covered, furry accordion is one thing. It is a cartoon. It is obviously fantasy and I think even young children can realize what happens on cartoons can't happen in real life. After all, they know that dogs and cats can't talk, despite what happens in cartoons.
But when the same type of falls are shown in live action movies, supposedly involving real people, I wanted to be sure that they understood that those people were specially-trained stunt people doing these things under specially-created and supervised conditions. I wanted to be sure they also understood that if ordinary did the same thing, they would be seriously hurt, if not killed.
That was my responsibility as a parent. I didn't ask the studios to do it for me. I did it myself. It's what I'm supposed to do.
When I originally wrote this, Tony Isabella was not a parent, but he was, at the time, a comic retailer. I know he took home a copy of every comic he sold in his store and reviewed it for its content. That product which he found inappropriate for sale to children, he placed in special sections of the store from which they could not purchase it. This was his right--no it was his responsibility-- as a retailer. (No, this isn't a retreat from the previous paragraphs. Tony's practice did not preclude me from buying these items for my children, if I felt they are could handle the material. It allowed me to exercise my parental prerogative and responsibility.)
Tony did not need or did not want the publishers to establish guidelines, as to what should or should not be sold to children in his store. (When Warren was in its final days, he placed their books in the adult section because of their content without any guidelines ever issuing from Warren.) He was perfectly capable of handling that task himself and has no desire to delegate it to others. He was responsible.
All other retailers and distributors should do the same. They should not whine that they cannot perform the task and demand that the publishers do it for them. It may require extra work but at least they can do the task. The publishers cannot.
Publishers do not know what the local standards in Mason City, Iowa or Cleveland, Ohio are and are not equipped to determine what is or is not appropriate content in these, or any other, locale. The local distributors or retailers, on the other hand, are. In fact, they are the only ones who are equipped to know what the local community standards are. They are the ones who must exercise the responsibility of monitoring the sales in their stores.
If I have offended any of my readers with this column, I do not apologize. Censoring the arts is far more offensive than anything I may have said.
Bob Ingersoll
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