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THE LAW IS A ASS for 07/09/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 152
Originally written as installment # 136 and published in Comics Buyer's Guide issue # 753, April 22, 1988 issue
Let me tell you a little story about my name. I am directly descended from Jonathan Edwards, theologian and spearhead of the Puritan religious revival of the eighteenth century known as the "Great Awakening." There are several members of my family named Jonathan Edwards Ingersoll-- including my father, my older brother, my nephew, a first cousin once-removed, and a second cousin. And several more preceded them.
I am also the thirteenth cousin three-times-removed of Robert Green Ingersoll; the famous lawyer, orator, and agnostic of the nineteenth century. When it came time for my father to name me, he decided--because so many members of my family were named after a minister--to give the other--and less popular--side of the religious question equal time. So he named me after the agnostic.
Maybe that's why I find myself constantly rooting for the underdog (although growing as a Cleveland Indians fan in the 60s and 70s could have something to do with this). Maybe that's why, when the First Amendment's guarantees of Freedom of Speech and Freedom of the Press were being routinely assailed--frequently by religious leaders of the same cloth as the one I wasn't named after, I champion the other side in "The Law Is a Ass."
Or maybe it was just because the First Amendment is simply too important to a thinking, free people not to champion it against all attacks.
******
THE LAW IS A ASS
Installment # 152
by
BOB INGERSOLL
People 8, Censors 0.
That was the final score in Virginia v. American Booksellers Association, Inc., 108 S. Ct. 636 (1988), the United States Supreme Court's latest case on the question of whether you or someone you don't even know will decide what you can read. The censors lost eight to zip. Remember, however, Justice Kennedy wasn't sitting on the bench yet. If he had been, things would have been different. The censors would have lost 9-0.
American Booksellers involved a Virginia statute which made it illegal, "to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse [visual or written material which] depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles." It's an important case for us in light of the Friendly Frank's case, win which an Illinois comic-book show was convicted of selling some obscene comic books.
(I haven't done a column on the Friendly Frank's case. There's a reason: I haven't read any of the allegedly obscene comics which caused Mike Correa's conviction. I can't very well write a column analyzing a finding that these comics were obscene without first having read them. I could write the column, I just couldn't do it very well.)
However, I don't want my silence to be taken as a lack of support for Mike. I support all who fight to preserve freedom of speech. Let this column serve as my public affirmation of my full support to Mike Correa and my heartfelt hope that he enjoys every success in the appellate process.)
Despite what it said in the Chicago Sun Times, Mike Correa wasn't convicted of an Illinois equivalent to the statute in American Booksellers, one criminalizing the display of "harmful" material where minors could see it. But he could have been.
Virginia, Illinois, and many other states have such Criminal Display statutes; statutes which probably make it illegal for your local comic shop to display Omaha, the Cat Dancer or Elektra: Assassin in the same store that carries Archie or Spider-Man. Such statutes do have a bearing on the local comic shop. And Mike Correa's unfortunate experience shows us only too graphically that there are those who are only too happy to prosecute comic shops.
If such statutes are too broad, they violate the Freedom of Speech clause in the Constitution and are legally void. Wouldn't it be nice, then, if comic shops could challenge the statutes' constitutionality, before they or their employees were prosecuted, convicted, and intimidated into leaving?
They can.
That's what the Supreme Court ruled in American Booksellers. I think we should examine the reasoning behind this decision.
(Some of you readers may go to law school, think of the head start you now have for your Con Law class. You'll need it!)
Many years ago, the United States Supreme Court said it was constitutional to outlaw selling material, which was harmful to juveniles, to juveniles. Now, what is "harmful to juveniles" is certainly open to interpretation. I, for one, think that Strength For the Journey is potentially more harmful reading than Lady Chatterly's Lover. Still, I can accept such a statute. There are certain artistic expressions which aren't intended for children and which most children, because their intellectual development is not yet advanced enough, cannot process properly. (I offer the World Wrestling Federation as an example. Or is it just me who can't process that properly?)
Banning the sale of such materials to children keeps it out of their hands while not preventing those who can process it properly from seeing it. (Of course, it still doesn't solve the problem of the WWF.) Also, the law doesn't keep parents from buying the material for their children, if they think the children are ready for it. Such a law is acceptable. It serves a useful function without substantially infringing the free speech rights of others.
The Virginia statute, however, didn't stop at outlawing sales to children. It forbade displaying the materials in such a way that children could see the material. I have definite problems with this statute.
So did the American Booksellers Association, which challenged the constitutionality of the statute and sued to enjoin Virginia from enforcing it, before Virginia ever arrested anyone under it or tried to enforce it. (It's nice to know that I wasn't alone. Being a voice crying in the wilderness isn't all it's cracked up to be. After all, if a voice cries in the wilderness and no one's there to hear it, does it make a noise?)
Virginia moved to dismiss the suit on the grounds that the ABA didn't have standing to challenge the law. Virginia argued the ABA couldn't challenge the statute, before someone's prosecution created an actual case or controversy.
The Supreme Court disagreed. It felt that even though no one had been arrested, there was enough danger that the law would violate someone's freedom of speech to create a case or controversy. As free speech is our most precious right--one to be cherished and guarded religiously--the ABA or anyone else has the right to sue to protect the First Amendment rights of others, even though the others are not before the court themselves.
You may be wondering whose First Amendment rights are threatened by the Virginia display statute. Yours and mine are.
Statues which outlaw displaying certain types of merchandise where minors can examine it impact upon the store's ability to sell said merchandise. In order to comply with the law the store must either 1) create an Adults Only section, 2) place the materials behind the counter or blinder racks, 3) not carry the merchandise in question, or 4) bar juveniles from the store. Let's not be coy about it; these alternatives suck canal water!
No general interest bookstore wants to exclude an entire segment of the buying public, so it won't employ the fourth alternative. And the first three create real problems.
Bookstore customers usually make their purchases by browsing, finding something interesting, and buying it. Some even browse to find the most boring book imaginable and purchase it. (How else do we explain the proliferation of high fantasy?) Bookstore owners will tell you most of their sales are impulse buys.
If an entire class of merchandise is tucked away in an Adults Only sections--which many customers are reluctant to enter--or hidden behind blinder racks or, worse yet, not carried at all, there will be reduced browsing of that type of merchandise. Reduced browsing means reduced sales.
The ultimate result of laws forbidding the display to minors of certain materials is to reduce what the adult population can easily browse and ultimately purchase to the lowest common denominator of books suitable for children. The Supreme Court has repeatedly held that statutes which have this effect are unconstitutional. (Thank God! Could you imagine a world where all you could read was the Sweet Valley High series?)
If bookstores must hide the "Adult" material from the kids and thereby reduce their sales, it won't be long before the decreased sales prompt the bookstores either to stop carrying the materials all together or to reduce their orders to match the reduced sales. Either way, the available markets for these materials will be significantly smaller.
The creators of such material will have then two choices. They can continue to produce "Adult" materials, even though there is no market for them, starve, and hope they can unload their stuff in the bi-weekly Starving Artists Sale at the local Holiday Inn. Or they can produce only works which can be displayed to children--a frightening prospect; a steady diet of pabulum isn't even healthy for your average six-month-old!
When artists refrain from making constitutionally protected, adult oriented, free speech, because it's unmarketable; free speech is denied to both the artists--who have the right to express themselves without being fettered--and the customers--who have an equal unfettered right to buy the form of expression they choose. Because the Virginia statute would infringe the free speech rights of both authors and bookbuyers, the ABA had standing to challenge the statute.
Another, and equally chilling, result of the statute is that bookstores would engage in self-censorship to avoid prosecution. This would deprive the customers of free speech, because they wouldn't be able to find and buy certain types of materials.
This particular free speech deprivation could never be litigated. If the booksellers refrained from carrying the materials to avoid prosecution, there would be no prosecutions to create the case or controversy necessary to challenge the constitutionality of the statute. In order to prevent the ill of self-censorship and the resulting unchallengeable deprivation of free speech to the public-at-large, the Supreme Court ruled that the ABA had standing to challenge the statute's constitutionality, before it was enforced.
If you're reading this column, you are presumably a comic or bookstore customer. Your local comic or bookstore probably isn't aware of this case. Please point it out to them, so that bookstore owners of America will know what their rights are.
Although, the Supreme Court held that the ABA had standing to challenge the statute, that's all the Supreme Court held. The Supreme Court did not hold that the statute in question was unconstitutional. The Supreme Court wanted to know how Virginia would apply the law, before it decided if it would invalidate it. So the Supreme Court sent the case back to the Virginia Supreme Court so it could answer two questions.
The Supreme Court first wanted to know how large a body of works was "harmful to juveniles" and covered by the statute. Did the classification include such works as Catch 22 or was it limited to a narrower and more easily enforced body, such as a complete run of Beasts in Bondage? (The Supreme Court did indicate, however, that the larger the class of works covered, the more likely the Court would rule the statute unconstitutional.)
The second question which the Supreme Court certified was what steps could a store owner take so that he could both display the covered materials and still avoid prosecution. If, for example, a store publicly displayed the covered materials so that all adults could see and browse them but had a policy of ejecting all juveniles caught examining and perusing the material, would it be in compliance with the statute? (The Supreme Court indicated that the more freedom a store had to display the material to adults without violating the law, the more likely it was that the court would find the statute constitutional.)
The questions were only certified in February, so I don't know the answers yet. In fact, I'm not likely to know the answers. I don't have ready access to the rulings of the Virginia Supreme Court.
I would appreciate any reader in Virginia sending me the answers, after the Virginia Supreme Court renders them, so I can do a follow-up column. I have a great interest in what the answers will be. So should everyone who enjoys free speech.
******
Now for a confession. It's not just my firm belief in freedom of speech that prompts me to write these First Amendment columns. This column marks the latest blow in my continued fight for freedom of speech. This, of course, makes me a freedom fighter. And, if the Reagan Administration learns that I'm a freedom fighter, maybe they'll divert some funds my way.
Bob Ingersoll
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