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THE LAW IS A ASS for 01/07/2003
DOCKET ENTRY
"The Law is a Ass" Installment # 178
Originally written as installment # 158 and published in Comics Buyer's Guide issue # 797, February 24, 1989 issue
As promised last week, here's the follow-up column on obscenity prosecutions and what one can do, if one's state makes it illegal to display "harmful to juvenile" materials in areas where juveniles are likely to be. That is, what they can do instead of just waiting around to be prosecuted or deciding to go out of business. It's important.
What isn't quite as important, but what also struck me as I re-read this column to prep it for reprinting was my references to many, many comic books and TV shows which now no longer exist. I debated changing them, but decided not to. Better to let them stand as they are and serve as a little written time capsule of a simpler time.
Yeah, that and the fact that there were just so damned manyof them!
******
THE LAW IS A ASS
Installment # 178
by
BOB INGERSOLL
So you've done the market research and found the ideal location--a neighborhood where they actually read instead of force feeding quarters into the arcade versions of the Nintendo games they got for Christmas. You've secured the capitalization, leased the storefront, ordered the merchandise, and hung the puffy Wolverine figures from the dropped acoustical tile ceiling. You're ready to realize your dream. You're going to open a comic book store. (Not a bad dream actually--with all the product out there, your own comic shop or hitting the lottery is the only way any of us has a chance of reading all the comics that come out.) Then you run into a problem.
You've got your mutants, your Marvels, your DCs, your Eclipses, Firsts, Comicos, Eternities and all the other companies which I won't list individually--I may get paid by the word I can't disguise my word padding as effortless as Dickens did. Along with that you've got your Care Bears, your DinoRiders, your Richie Rich, and all the other kiddie books you ordered in small quantities so you could display them somewhere near the window in hopes of pulling the little ones in. But there's this other box--the one in the plain brown wrapper with the number 666 stamped on it--the one with Omaha, the Cat Dancer and Melody, the Story of a Nude Dancer and Hellblazer, and Grendel and Stray Toasters in it.
You ordered them. You wanted them--not only because you like them but because they're the comics you point to proudly when someone asks you why someone your age still reads comics and this way you don't have to admit that you shudder secretly like The X-Men. But what do you do with them?
Our state has a law which makes it illegal to knowingly display for commercial purpose materials which are not quite obscene but which are harmful to juveniles in a manner whereby juveniles under the age of eighteen may examine and peruse. You're afraid you can't display these titles in a way that your non-juvenile customers can see, examine, peruse, and--you hope--buy them that doesn't violate the aforementioned law.
You don't want to put them under the counter or behind blinder racks or in a special "Adults Only" section that people feel inhibited about entering, because no one--not even their intended audience--would see the wares back there. You want to give them full cover display, because you realize that while some customers come in looking for a particular title, most bookstore customers come in simply to check out what came out this week, see something they like, and buy it on an impulse. You don't want to do anything which would limit impulse buying, which is, actually the life blood of any book story. So you don't want to do something radical like putting the comics where the customers can't see them and buy them on an impulse.
So how do you display them to give them maximum exposure without violating the law? I may have the answer. (You didn't think I'd bother writing all that set-up, if I didn't have the answer, did you? That would be as pointless as selling the rights to all the Harry Chapin songs to the Alvin and the Chipmunks.)
Virginia has such a law. Several groups including the American Booksellers Association sued in federal court to have the law declared an unconstitutional abridgement of their First Amendment right to free speech, before it was ever enforced. They argued under the law's broad definition of "harmful to juveniles" any number of respectable books--including, but not limited to: Changing Bodies, Changing Lives, Am I Normal?, Forever . . . , American Couples, Lord Foul's Bane, Ulysses, The New Our Bodies, Ourselves, Lucifer's Hammer, The Penguin Book of Love Poetry, and The Witches of Eastwick--could be harmful to juveniles.
Both the United States District Court for the Eastern of Virginia and the United States Court of Appeals the Fourth Circuit agreed that the law was unconstitutional. Virginia appealed to the United States Supreme Court, challenging the plaintiff's right to challenge the law, before it was ever enforced and before a case in controversy existed. The United States Supreme Court upheld the right of potential criminal defendants or other interested parties to challenge the law's constitutionality before it was enforced, because of the law's potential to infringe upon freedom of speech. The Supreme Court, however, stopped short of ruling the law unconstitutional. Instead, it remanded the case to the Virginia Supreme Court so that it could interpret the law's broad language and, thereby, give guidance as to how it was to be enforced. Specifically, the United States Supreme Court certified two questions for the Virginia Supreme court to answer: 1) "Does the phrase 'harmful to juveniles' . . . encompass any of the books [named by the plaintiffs] and what general standard should be used to determine the statute's reach in light of juveniles' differing ages and levels of maturity?" and 2) "What meaning is to be given to the provision . . . making it 'unlawful to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse' certain materials? Specifically, is the provision complied with by a plaintiff bookseller who has a policy of not permitting juveniles to examine and peruse materials covered by the statute and who prohibits such conduct when observed, but otherwise takes no action regarding the display of restricted materials?" (Which is quite a mouthful even by Supreme Court standards.
Those are the long questions. The short answers are, respectively,"No" and"Yes".
Now, because it's late and I'm tired, I think I'll go to bed.
Oh, you want the long answers. Thanks to Mic McConnell of Richmond, Virginia, who sent me a copy of the Virginia Supreme Courts's decision which supplied those answers, I can also supply those answers.
Answer 1): the Virginia Supreme Court ruled that none of the sixteen books named by the plaintiffs were "harmful to juveniles" within the meaning of the statute. The Virginia Supreme Court noted that the statute in question was a criminal statute, which--because of the constitutional presumption of innocence that all criminal defendants enjoy--must be strictly construed against the state. The statute defines"harmful to juveniles" as works which, taken as a whole, lack any serious literary, artistic, political, or scientific value. The recent United States Supreme Court case of Pope v. Illinois held that in obscenity prosecutions such value must be measured upon a reasonable man standard, so that if a reasonable man--even if he is in the minority--finds merit in the work it is protected by the First Amendment. In this way, the majority can't force its views and tastes on a reasonable minority. (Unfortunately, it doesn't always work the other way around. How else do we explain such mind numbing mush as Raising Miranda?)
The Virginia Supreme Court applied the same rule to the "harmful to juveniles" definition and held for a work to have value, it need not have value to all juveniles. "A book will pass statutory muster . . . if it has serious value for a legitimate minority of juveniles [which] may consist of older, normal (not deviant) adolescents." In other words, if the comic in question has serious literary, artistic, political, or scientific value to juveniles in the sixteen-to-eighteen year old bracket, it is not harmful for juveniles.
One example that comes to mind: the now infamous birth scene from the Miracleman comic shouldn't be harmful to juveniles under this interpretation. It has a serious scientific and educational value to all those older adolescents who have stayed off the street corners and, "don't know nothing 'bout birthing no babies." All three of them.
Opponents of the law cite this interpretation as a major victory. They feel it effectively guts the law so that virtually nothing except obscenity is covered by it. I also regard the interpretation as a victory for the First Amendment. (Anything which makes it harder for some faceless third party to be able to dictate what you or I can read is a victory.) However, I am more guarded in my belief. As we have seen, there are communities perfectly willing to find comics such as Omaha, the Cat Dancer obscene. The law may have more bite than some believe. It is, therefore, also necessary to go to that other question, the one about what steps a bookstore owner can undertake in order to display his wares yet still comply with the law.
The Virginia Supreme Court ruled the statute was directed at the perusal of harmful materials by juveniles. As peruse is defined as, "to examine or consider or survey with some attention and typically for the purpose of discovering or noting one or more features or more specific points," the court concluded that perusing means more than browsing. Rather it entails detailed examination--usually taking the books off the racks and reading them or going through them page-by-page. The statute, then, was not designed to control simply displaying the wares for sale, but to control the opportunity the store afforded juveniles to make the kind of detailed examination that constitutes perusal. In order for the state to secure a conviction, it had to prove that the store knowingly afforded juveniles the opportunity to peruse the stuff or, knowing that the possibility for juvenile perusal existed, took no steps to prevent it.
The Virginia Supreme Court detailed how a store could display harmful to juveniles materials and still comply with the law. If a store keeps the harmful to juvenile materials in one area, which is open to the general public but off limits to juveniles, and has its employees intervene when they see a juvenile looking at it--a rather innocuous burden--it complies with the law. Such an area isn't exactly an "adults only" area and wouldn't have as much of a stigma. After all, no one comes down on movie theaters who screen R-rated movies. Oh, they may launch screeds about some of the movies, but they don't say that theaters should refuse to screen all R-rated fare. It could be the same in a store, if the section were described as the R-rated area instead of the "Adults Only" section.
Now what have we learned today? We've learned that the Virginia statute making it illegal to display materials harmful to juveniles in such a way that they can peruse them--the dirty little buggers--has been interpreted so that practically nothing except obscenity qualifies as harmful to juveniles and that stores can comply with the law yet still display the materials with the simplest of store policing policies. We've also learned that this interpretation--a victory for free speech--was the result of someone suing the state of Virginia over its intended enforcement of the law on the grounds that it violated the First Amendment and forced the Virginia Supreme Court to interpret the law in such a way as to make it comport with free speech but gut the law's coverage. We've learned that if you're a bookstore owner and your state has a similar law then you should sue to block enforcement of the law, too, or, at least, force a similar, disabling interpretation out of your state supreme court. Finally, we learned that when I'm tired, I can get real condescending.
******
BOB INGERSOLL, Cleveland attorney, comic fan, CBG legal analyst, but not free speaker--I tried to get paid for everything I do--is happy to report some progress. Remember how I recently complained that the death of Thomas and Martha Wayne scene in Batman, The Cult: Book 1 was a virtual panel for panel swipe of the stylistic and highly individualized death of the Waynes scene Frank Miller did in Batman, The Dark Knight: Book 1? Well in Batman # 430 the same writer who wrote The Cult did another rendition of the death of Martha and Thomas Wayne. You'll be glad to know this time he didn't swipe the scene from The Dark Knight: Book 1. He swiped the death of Thomas and Martha Wayne sequence from The Dark Knight: Book 1 and from Frank Miller and David Mazzucchelli's stylistic and highly individualized death of the Waynes scene in Batman, Year One: Chapter 1. Now that's progress!
Bob Ingersoll
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