Among the many tools in our kit is legal action. For individuals, much of our work is behind the scenes and intended to prevent cases from even reaching courts. To defend the First Amendment rights of the wider comics community, we frequently join legal opposition to legislation that would curb free expression, and in previous years, our legal briefs have even been cited in Supreme Court decisions.
Let’s take a look at a couple of key legal actions CBLDF took in 2015!
In November, CBLDF joined booksellers and publishers in filing a federal lawsuit that challenges a new Louisiana law requiring websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.
The law, enacted as H.B. 153, requires that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tries to access the material, is a crime that could lead to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything.
To comply with the law, booksellers and magazine publishers must either place an age confirmation button in front of their entire website, thereby restricting access to materials that may be appropriate for all ages, or attempt to review all of the books or magazines available at their website and place an age confirmation button in front of each individual page that might be inappropriate for any minor.
If a retailer places an age verification page at the front of a website, it would effectively bar all minors from buying all books. “The law is a serious threat to the First Amendment rights of booksellers and our customers,” Tom Lowenburg, co-owner of Octavia Books, said. “Our job is to get customers the books they want, but this law makes it impossible by forcing us to block access to 16- and 17-year-olds who want to browse Young Adult novels and other works that may be inappropriate for younger minors.”
“The law violates the First Amendment right of booksellers and publishers because it forces them to restrict access of their customers and readers on their online stores to what is acceptable for a 12 year old,” said David Horowitz, the executive director of Media Coalition. “Parental controls are a more effective and less restrictive way for parents to limit their kids’ access to sexual material on the Internet without violating the constitutional rights of adults and older minors.”
The lawsuit was brought by Media Coalition and the American Civil Liberties Union on behalf of two independent bookstores, Garden District Book Shop and Octavia Books, Future Crawfish Paper LLC, publisher of Anti-Gravity magazine, American Booksellers Association and Comic Book Legal Defense Fund.
Also in November, CBLDF joined the Electronic Frontier Foundation and the Organization for Transformative Works to ask the Supreme Court to overturn a lower court’s decision that gives celebrities veto power over creative works featuring depictions of them and to untangle inconsistencies with how lower courts handle such cases by establishing a consistent standard under the First Amendment.
The case in question, EA v. Davis, involves retired professional football players who are featured in EA Games’ Madden NFL. The players invoked the right of publicity in suing EA over the use of their likenesses, and the Ninth Circuit supported their argument and held EA liable. CBLDF and OTW joined EFF on an amicus brief asking the Supreme Court to overturn the decision.
Right of publicity laws are meant to protect celebrities from the use of their name, image, or likeness for commercial purposes, such as advertisements, but they have been increasingly used to attack creative works protected by the First Amendment. These cases are further complicated by the fact that lower courts have taken different approaches to right of publicity cases.While most courts agree that the First Amendment limits right of publicity claims, they don’t agree where that limit lies. Given disparate judicial approaches, the amicus brief contends that “an artist creating a work about a real person has little idea how a court might evaluate liability for use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis,” and demands that the Supreme Court establish a consistent measure for right of publicity cases.
CBLDF agrees that the right of publicity has been erratically interpreted by lower courts and used to stifle free expression, so we joined the EFF amicus brief, which also notes that right of publicity “has been asserted against biographies, comic books, songs, computer games, movies, and magazines, and has come to encompass virtually anything that ‘evokes’ a speciﬁc person.” The overly-broad and inconsistent application of right of publicity has been used to penalize artists and punish realistic expression. This is especially true in new media such as video and computer games, which were only recently awarded First Amendment protection in Brown v. EMA.
View the amicus brief here.
What else happened in 2015?
In 2013, CBLDF joined an amicus brief questioning the constitutionality of the Arizona law that was used to dissolve the acclaimed Mexican American Studies program in Tucson. We finally saw some results from that lawsuit in 2015, when the Ninth Circuit determined that at least one section of the law violates the First Amendment and that two other sections raise First and 14th Amendment concerns. The opinion does not strike down the law, but the Ninth Circuit has sent the decision back to district court for reconsideration, hopefully putting the law one step closer to being struck down. (We also learned that Arizona’s attack on MAS has also had the positive effect of spreading ethnic studies programs around the nation.)
We didn’t just file lawsuits and amicus briefs in 2015 — we also launched a legal writing contest! The CBLDF Writing Competition for Excellence in Comic Book Scholarship is directed to current students at any U.S. law school and seeks writings about comic books and the comic book industry. The competition is directed by CBLDF Board of Directors member Dale Cendali, a partner at the law firm of Kirkland & Ellis LLP. The winner of the competition will have the opportunity to participate in a CBLDF presentation at the 2016 Comic-Con International in San Diego! The winner of will also receive a $500 cash prize and a complimentary annual membership to CBLDF!
View our previous year-in-review coverage:
- CBLDF’s Top 15 Stories of 2015
- CBLDF Joins Coalition Efforts to Defend Books in 2015
- 10 Comics CBLDF Defended in 2015