The general rules in First Amendment jurisprudence are that content-based restrictions on speech are presumptively invalid, and that such restrictions are allowed only when they are both necessary to serve a compelling state interest and are narrowly drawn to achieve that interest. City of St. In the case Eclipse Enterprises v. Law professor Nadine Strossen, former president of the American Civil Liberties Union, has expressed offense at the idea that comic books deserve less First Amendment protection than other media.
Any erosion of any expression or idea in any medium endangers every expression and every idea in every medium. The first two prongs of that test are judged by contemporary community standards where an offense occurs, while the final prong — serious societal value — is judged by a contemporary national standard.
However, the seller or distributor does not have to be aware the item is legally obscene Hamling v. United States, Under Supreme Court precedent, even pornographic works that have serious artistic, literary, political or scientific value are not obscene, and are protected by the Constitution. Thus, Napier testified, the comic had artistic value, literary value, and — because of its treatment of the desire for power — even political value. Further, the police officer had no expertise in national artistic standards, says Joseph. The Court also held:.
The line between the informing and the entertaining is too elusive for the protection of that basic right.
Everyone is familiar with instances of propaganda through fiction. Nonetheless, vague anti-comics laws remain on the books in a few locales. The law was designed to censor the tabloid newspapers and dime novels of the late Victorian era. Originally, the law kept violent books and tabloids only from minors, but in , New York amended the law to keep violent material from adults too. Twenty-two other states had passed similar laws by , some keeping violent books only from children, and others keeping them from both children and adults. The U. Gaines published some of the most notable mature comics of the era.
However, adult-themed comics from Gaines and other publishers created a firestorm of controversy among censors. That assertion was based largely on the Senate testimony of child psychiatrist Fredric Wertham, who asserted that all comic books were harmful to children. Decades later, Wertham would recant that assertion by reporting that comic-book readers often grow up to be normal, well-adjusted adults. Should we ban milk? Other scientists and crime experts flatly disagreed with Wertham. In fact, Wertham apparently overlooked evidence that youth crime was dropping in postwar America, perhaps owing to increased parental supervision as fathers returned from combat and mothers from munitions factories.
Maryland judges would even rule that exposure to adult themes and issues through comics might help prepare youngsters to deal with real-world problems as adults. Siegel Enterprises, Inc. But in the wake of accusations from Wertham and the Senate subcommittee, an outraged public subjected comics to book burnings. Although the Senate report discouraged anti-comics laws in favor of industry self-regulation, several states quickly passed anti-comics laws.
The state of Washington passed a law making it a crime to sell comic books without a license. Los Angeles. Although he concedes that some of the horror and crime comics of the s may have been inappropriate for small children, he expresses anger at efforts to bankrupt companies that sold such comics to consenting adults and older teenagers.
They figured if they could censor the print media for children, they could do it for adults as well. During the Senate hearings on juvenile delinquency, EC Comics Publisher Gaines pointed out that violence similar to what appeared in comics was in truthful news reports about crime.
You must censor comic books, radio, television, and newspapers. He says that Murphy refused to allow EC to publish a story that placed an African-American astronaut in an allegorical story about race relations. When Murphy would not allow the astronaut to be a black man, EC threatened to hold a press conference declaring the Comics Code Authority to be racist, says Feldstein. Murphy backed down, allowing the character to be black, but then raised an accusation that showing the astronaut with sweat on his brow was racist.
EC then decided to end its affiliation with the Comics Code Authority.
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At least we were back in business again. Eventually, EC canceled its horror titles to publish medical dramas and other innocuous fare, but owners of bookstores and newsstands were afraid to sell even those EC comics, because their covers did not bear the Comics Code seal of approval, says Feldstein.
Those laws specifically exempted any periodical with the page size of a traditional glossy magazine, rather than the smaller size that comics usually have. And we were getting returns up to 90, 95 percent. So we got desperate.
Comics Code: unconstitutional? Although state officials said the commission itself had no law-enforcement power and merely gave advice, the Court found that the commission practiced informal censorship, successfully using intimidation to unconstitutionally restrain retailers from circulating material that had not been judicially determined to be obscene. Writing for the Court majority, Justice William Brennan ruled:. Kingsley Books, Inc. The system at bar includes no such saving features. On the contrary, its capacity for suppression of constitutionally protected publications is far in excess of that of the typical licensing scheme held constitutionally invalid by this Court.
But supporters of the Comics Code might reasonably argue that it was not unconstitutional because the code appeared to be a voluntary form of self-regulation by publishers who joined the Comics Code Authority. That view is explored in a journal article on Internet regulation by Solveig Singleton, director of information studies at the Cato Institute.
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The fact that some Comics Code provisions and New York laws mirrored each other, and the fact that some police and prosecutors apparently relied on the Comics Code seal when deciding which comics might be illegal, might have given the code the color of law. Finally, if the Comics Code truly was a delegation of government power, and if the Comics Code Authority used that power to enforce political and racial discrimination, as Feldstein says, then that discrimination may have been unconstitutional under a variety of precedents.
Assuming that the Comics Code Authority acted under delegated government authority, the code may have been unconstitutional for a further reason. Unlike the current self-censoring rating systems for the movie, television and video-game industries, the Comics Code made no effort to distinguish content that was appropriate for some age groups but inappropriate for others, as when movie ratings distinguish a PG-rated film from a PG or R-rated film. The Comics Code and state censorship of comics not only made them sillier and less lucrative, but may have also encouraged serious artists to join the pornography industry to gain greater artistic freedom and better incomes.
Another way comic-book censorship has backfired is by drawing publicity to allegedly obscene works that were previously seen by few people, says comics-defense lawyer Joseph. Ratings, labels, gradual respect Today, the largest comic-book publishers sell separate lines of comics to very young readers, adolescents and adults. The issue of whether to label explicit content has sometimes been contentious in the comics industry, because labels have the upside of helping parents decide what reading is appropriate for their children, and labels have the downside of sometimes drawing censors who want to keep non-obscene material from adults.
There was no graphic nudity in this scene — no exposed genitals or nipples — but there did appear to be adultery. Castillo, prosecutors and judges used warning labels against a bookstore clerk as evidence that he knew that contested comics were obscene — although a dissenting judge pointed out that the warning labels could have indicated either sexual or violent content.
Nonetheless, labeling seems to be the predominant method that comic-book publishers use for helping the public differentiate between titles marketed to children, teenagers and adults. Some comic-book publishers cater exclusively to older audiences, and their right to do so has been held constitutional. Correa, an Illinois appeals court overturned the obscenity conviction of bookstore manager Michael Correa, who sold erotic comic books to an adult at the Friendly Frank comic shop in Lansing, Ill. The court judged the comic books by the same constitutional standards applied to other literature, and essentially found that sexual content that would not be obscene in another medium does not magically become obscene merely because it is in cartoon form.
We find that the depicted nudity and sexual conduct of the cartoon characters animals with human attributes are part of a subplot incidental to the main storyline. Again, the nudity and sexual conduct depicted in the book are subsidiary to a discernible plot. In terms of the statute, we cannot say that each of these comic books, taken as a whole, lacks serious literary or artistic value.
The comic at issue included sexually explicit drawings by underground cartoonists Robert Crumb, S.
For instance, states may require that sexually indecent comics be placed on high shelves in stores, whenever similarly indecent magazines or videos must be placed there. Nonetheless, community standards in some locales could make sexually explicit comics vulnerable to prosecution under either obscenity or indecency laws. Prurient, patently offensive comics that have such value are not obscene, but are merely indecent, and are constitutionally protected unless they contain child pornography.
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Such protected images include images of youthful adults and realistic, digital images of minors who have never existed in the real world.
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