Utah’s law sought to regulate all Internet speech that some might consider “harmful to minors,” including works of visual art, photography, graphic novels, and information about sexual health and the rights of lesbian, gay, bisexual, and transgender youth.

The official press release from the Media Coalition discusses the importance of the victory:

SALT LAKE CITY May 18, 2012 — People cannot be prosecuted for posting content constitutionally protected for adults on generally-accessible websites, and are not required by law to label such content that they do post, U.S. District Judge Dee Benson held yesterday.  Judge Benson’s order was issued in a lawsuit challenging a Utah law that threatened the free speech rights of online content providers and Internet users.  Plaintiffs included a Utah artist; trade associations representing booksellers, publishers, graphic and comic books, and librarians; and the ACLU of Utah.

In 2005, the Utah legislature extended to electronic communications its existing law regulating the distribution of “harmful to minors” content—that is, speech that adults have a First Amendment right to receive but that minors do not.  Plaintiffs filed this lawsuit that year, arguing that the broadly worded Utah law violates the First Amendment by prohibiting lawful adult-to-adult communications on the Internet simply because a webpage or blog may be seen by a minor, while also compelling online speakers to label or rate such content. Similar overbroad statutes in other states have been held unconstitutional, or have been limited by the courts in a manner similar to the judgment entered in this case.

Plaintiffs’ counsel worked out an agreement with Utah Attorney General Mark Shurtleff on how the law would be implemented.  Yesterday’s order makes clear that the only people who can be prosecuted under the statute for electronic communications are those who intentionally send “harmful to minors” materials to a specific individual known or believed to be a minor, or who send such material to a minor having negligently failed to determine the age of the recipient.  The order also narrowed the mandatory labeling provision in light of advances in Internet filtering software since the statute was enacted in 2005.  The Utah Attorney General Mark Shurtleff acknowledged that the requirement of labeling has been rendered unnecessary by more advanced software.

“This is a critical victory for free speech,” said David Horowitz, Executive Director of Media Coalition, an organization that represents the trade associations of booksellers; publishers; graphic and comic books; and librarians.  “This declaratory judgment makes clear that adult-to-adult communications on the Internet, and through other electronic means, cannot be restricted simply because minors also access the Internet and other electronic communications.”

“Judge Benson’s order removes the cloud cast over internet speech that Utah’s broadly worded statute had created,” said John Mejia, Legal Director of the ACLU of Utah.  “With this declaration, the ACLU of Utah can continue to make information such as out ‘Know Your Rights’ materials for students and LGBT youth available online without fear of possible prosecution for doing so.”

“This judgment brings the Utah law into line with 15 years of legal precedent protecting the constitutional rights of adults to access lawful content online,” said Emma Llansó, Policy Counsel at the Center for Democracy & Technology.  “It also underscores that the best approaches to protecting children online rely on user empowerment tools.”

“We are grateful to Attorney General Shurtleff for recognizing that this narrow construction of the statute fully serves Utah’s interest in protecting minors, while also protecting our First Amendment rights,” said Michael Bamberger, of SNR Denton US LLP, lead counsel for plaintiffs. “The resolution by agreement of the parties would not have been possible without the assistance of Judge Benson.”

Plaintiffs included Nathan Florence, American Booksellers Foundation for Free Expression; Association of American Publishers; Comic Book Legal Defense Fund; Freedom to Read Foundation; and the ACLU of Utah.  They were represented by Michael Bamberger and Richard Zuckerman of SNR Denton US LLP, which is general counsel to Media Coalition and by the ACLU of Utah and the Center for Democracy & Technology.

More information is available at http://www.mediacoalition.org/

You can read a detailed history of the case here.

Please help support CBLDF’s work to strike down unconstitutional censorship laws such as this by making a donation or becoming a member of the CBLDF!

Earlier this month, we announced that Arizona’s HB 2549 — a bill that could have limited constitutionally-protected electronic speech — had been pulled back by the state legislature for revision. This week, Eugene Volokh with The Volokh Conspiracy laid out those revisions, discussing how the revisions conform to constitutional standards. In sharing a letter written by the Media Coalition in opposition to the bill, CBLDF was one of the first organizations to cover a story that had otherwise flown under the radar. In its original form — which the Arizona legislature had passed and was on Arizona governor Jan Brewer’s desk for signature — the bill could have created vulnerabilities for cartoonists and publishers.

The primary concern most Free Speech advocates had over the bill was the broadness of the language in the bill. Lawmakers intended the law to protect people from online stalkers and bullies. The bill revised statutes related to telephone harassment, widening existing legislation to include electronic and digital devices. Volokh points out why the revision was potentially unconstitutional:

The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

This, as I argued, would have posed serious First Amendment problems. Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

Volokh analyzed the changes to the bill, relating his opinion on how the revisions conform to the First Amendment. He also relates how the changes still aren’t perfect:

Fortunately, the Arizona Legislature’s House-Senate conference committee has dramatically narrowed the proposed statute. The new version — which I expect will become law — reads,

A. It is unlawful for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons, to do any of the following:

1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.

2. Threaten to inflict physical harm to any person or property in any electronic communication.

3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received….

C. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law….

This is much more likely to be read as limited to one-to-one messages, such as unwanted targeted e-mails, instant messages, text messages, and the like. The language is not completely airtight on that score, but I think it’s much more likely to be so interpreted. And though there are problems with the proposal even as to unwanted one-to-one messages — for instance, “harass” is not defined in the statute, and the word “harassment” is defined three different ways in three other Arizona statutes, which reflects its ambiguity — I think the new version is much better than the original draft.

While going through the legislature, the bill garnered little notice from the press. After the release of the Media Coalition letter, several outlets picked up on the story, including Time, MSNBC, Yahoo, Digital Media Wire, Gizmodo, Forbes, CBR, Alex Jones’ Prison Planet, The New American, Anime News Network, Tech Crunch, and many more. Most of these outlets picked up the story because of efforts by CBLDF and Media Coalition. In fact, Volokh thanked CBLDF for our coverage, which is how he learned of the bill.

It is possible that the bill would have passed into law in its original form without the national attention provided by media outlets, calling attention to the bill’s unconstitutional provisions. The changes made to the bill represent a victory for Free Speech.

Please help support CBLDF’s important First Amendment work and reporting on issues like this by making a donation or becoming a member of the CBLDF!

Betsy Gomez is the Web Editor for CBLDF.

A little note before I begin. The below discussion involves a little more legal theory and history than I am usually comfortable writing about. And while I am a lawyer, I do not practice First Amendment Law. And while a card carrying member of the Comic Book Legal Defense Fund (CBLDF) and I regularly contribute to them, I have never worked for or represented the CBLDF (and am actually restricted from doing so by Federal Regulation). Most importantly, I did NOT stay in a Holiday Inn Express last night. As a result, nothing below is meant to be legal advice or even a legal opinion. I’m merely summarizing what happened at the panel (and giving my personal views as a creator and following up where applicable). In short, “Some restrictions apply”; “void where prohibited by law and not available in NJ”; and “Do not taunt happy fun ball.” Now that that’s out of the way (darn lawyers):

I attended a great presentation by Charles Brownstein, the Executive Director of the Comic Book Legal Defense Fund (CBLDF), which traced the history of censorship in America. Surprisingly, C2E2 actually had two panels on censorship and scheduled them at exactly the same time. To their credit, once the organizers realized this, they moved the CBLDF Panel. The other one was done by the ALA and I didn’t get to attend. But, I made it a point to attend the CBLDF panel (and gave up a chance to hang with John Cusack to do it—sorry John). It was called “CBLDF: The History (and Future) of Comics Censorship.”

I am a big fan of the CBLDF and the work they do. I wrote a post about them here.  A relative young organization, only in existence for 26 year, the CBLDF exists to protect the First Amendment Rights of creators, retailer, and libraries. And why many people know what they do, this panel highlighted the reasons why we need a CBLDF in the world. I took fairly comprehensive notes and will do my best at summarizing Mr. Brownstein’s fascinating lecture.

Brownstein started by reading the First Amendment and stressing the importance of the exact words.  I agree with him and so I will reproduce them here in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If you look at those words, the First Amendment doesn’t say that only free speech that you are comfortable with or agree with is protected; it says that all free speech is protected. Obscenity, on the other hand, is not protected. And throughout history kids try to rebel and parents try to protect them by reining them in. That is a noble goal, but sometimes people freak out and overcompensate. And when things are taken too far, you end with censorship. Sadly, censorship arising from moral panic is a constant presence in the history of comics. From the thirties to the modern day, the medium has been stigmatized as warping young minds.

Comics came out in the 30s and pretty much from that day moral crusaders said that comics corrupted youth. This outcry led to a rash of public criticism in popular magazines and newspapers. In fact, it got so bad that people actually led to comic book burning.

Brownstein pointed out the absurdity of this as comics were powerfully important in influencing society and the youth. In fact, he gave the statistic that during World War II, 25% of printed matter sent to military wee comics. And while these comics were fine for the young men and women defending the country, those same books were being burned back in the states.

In response the Association of Comics Magazine Publishers was created in 1948 to regulate the industry and create rules which were modeled loosely after the 1930 Hollywood Production Code. Essentially, this code banned graphic depictions of violence and gore in crime and horror comics, as well as the sexual innuendo of what aficionados refer to as good girl art. But, the organization never took off.

Dr. Frederick Wertham

I’m not sure there is a comic book fan who isn’t familiar with the infamous Dr. Wertham or his book, Seduction of the Innocent.

Dr. Wertham was a child psychologist who worked with juvenile delinquents. Juvenile delinquency was on the rise in America in the 1950s and he tried to figure out why.  He discovered that many of his patients read comics. As a result, he concluded that comics were a corruptive influence on children. Apparently, he was also a media hound who was always looking for way to be in the spotlight and his used his anti-comics soap box as a road to celebrity.

The apex of his anti-comics work was the 1954 book Seduction of the Innocent, which vilified horror, crime, and superhero comics. This book led to the brutal censorship of comics in the 1950s. Brownstein again showed the hypocrisy of Wertham’s position by pointing out the Werthams’s view of child sidekicks as homoerotic child abuse, when in fact the sidekick was created as a way to help kids deal with their absentee father figures who were shipped overseas during the war.

As a result of Wertham’s crusade, the Senate Subcommittee on Juvenile Delinquency held hearings in 1954. Wertham was asked to testify to a room of sympathetic Senators. He made a convincing case.

On the same day, Congress also heard from William Gaines, the publisher of EC Comics. EC comics printed crime and horror comics (Brownstein didn’t mention it, but I always found it kind of ironic that EC Comics started by printing Bible comics.) EC Comics, which included titles such as Tales from the Crypt, The Vault of Horror, Shock SuspenStories, Weird Science and Two-Fisted Tales, featured stories with content above the level of the typical comic. For some reason, Gaines volunteered to appear at the hearing (which is never good advice). He also was on diet pills. So, by the time he actually was able to testify after Wertham, he was crashing on the pills and experiencing flop sweats. To make matters worse, he was defiant in his testimony and met with disdain from the Senators. In short, his testimony was a public disaster and led to further public backlash against comics.

To bring the story home, Brownstein mentioned a few examples, such as the aggressive opening remarks by Gaines. I was able to track down a copy of them, he said:

• “Entertaining reading has never harmed anyone. Men of good will, free men should be very grateful for one sentence in the statement made by Federal Judge John M. Woolsey when he lifted the ban on Ulysses. Judge Woolsey said, ‘It is only with the normal person that the law is concerned.’ May I repeat, he said, “It is only with the normal person that the law is concerned.” Our American children are for the most part normal children. They are bright children, but those who want to prohibit comic magazines seem to see dirty, sneaky, perverted monsters who use the comics as a blueprint for action. Perverted little monsters are few and far between. They don’t read comics. The chances are most of them are in schools for retarded children. What are we afraid of? Are we afraid of our own children? Do we forget that they are citizens, too, and entitled to select what to read or do? Do we think our children are so evil, so simple minded, that it takes a story of murder to set them to murder, a story of robbery to set them to robbery? Jimmy Walker once remarked that he never knew a girl to be ruined by a book. Nobody has ever been ruined by a comic.”

Brownstein also mentioned that, during the hearing Gaines was showed a cover of Crime Suspense Stories, which featured a killer carrying the severed head of a woman and an axe and was asked whether he thought it was in good taste. As a result of his responses, the major newspapers announced in headlines that “Crime publisher says shock comics in good taste.”

If you are curious, here is a copy of that infamous cover.

And a copy of his testimony:

• Chief Counsel Herbert Beaser: Let me get the limits as far as what you put into your magazine. Is the sole test of what you would put into your magazine whether it sells? Is there any limit you can think of that you would not put in a magazine because you thought a child should not see or read about it?
• Bill Gaines: No, I wouldn’t say that there is any limit for the reason you outlined. My only limits are the bounds of good taste, what I consider good taste.
• Beaser: Then you think a child cannot in any way, in any way, shape, or manner, be hurt by anything that a child reads or sees?
• Gaines: I don’t believe so.
• Beaser: There would be no limit actually to what you put in the magazines?
• Gaines: Only within the bounds of good taste.
• Beaser: Your own good taste and saleability?
• Gaines: Yes.
• Senator Estes Kefauver: Here is your May 22 issue. [Kefauver is mistakenly referring to Crime Suspenstories #22, cover date May] This seems to be a man with a bloody axe holding a woman’s head up which has been severed from her body. Do you think that is in good taste?
• Gaines: Yes sir, I do, for the cover of a horror comic. A cover in bad taste, for example, might be defined as holding the head a little higher so that the neck could be seen dripping blood from it, and moving the body over a little further so that the neck of the body could be seen to be bloody.
• Kefauver: You have blood coming out of her mouth.
• Gaines: A little.
• Kefauver: Here is blood on the axe. I think most adults are shocked by that.

Code of Silence

After the devastating Senate hearings, the comics industry was faced with an angry public and the fear of Congressional interference through adverse regulations. In response, the industry created the Comics Code Authority (CCA). Similar to the Association of Comic Magazine Publishers, the CCA sought self-regulate comics. Essentially, the CCA sought to sanitize comics and eliminated the crime and horror genres. Essentially, comics for older teens and adult disappeared for nearly fifteen years.

The Underground Comix Movement

From 1966 through 1973, there a movement called underground comix. Underground comix emerged as an uncensored form of art that challenged class, sexuality, equality, politics, and drugs.  (I should add that I don’t particularly enjoy reading underground comix and they are not my cup of tea.  But, that is a far cry for believing that they should be pulled off the market.) Underground comix thrived for less than ten years because of changes in the law. These changes came about with a criminal case involving Zap Comix. Although Zap Comix was thought to be the gold standard for underground commix, it was also the first to be found to be legally obscene.

Specifically, there was a story in Zap Comix #4 that attacked social conventions. One of the stories, “Joe Blow” by Robert Crumb, was drawn in a simple line Walt Disney style and featured a white collared executive who, after a hard day at the office, enjoyed spending quality time with his nuclear family. Of course, this quality time consisted of an incestual orgy (with the motto “the family that lays together, stays together.”), thus providing a unique commentary on the hypocrisy of America. Brownstein added that Crumb is now hanging in several museums. Zap Comix #4 was the subject of a sting operation and retailers who offered it were prosecuted for (and found guilty of) selling obscenity in New York. The book was also prohibited from being sold over the counter in New York.  It is interesting to note that Judge Joel Tyler, who provided over the case is the same judge who made Deep Throat famous by ruling it to be obscene. In the Zap Comix opinion, Judge Tyler stated, “. . . the cartoon is ugly, cheap and degrading. Its purpose—to stimulate erotic responses, and does not, as claimed, deal with basic realities of life. It is grossly shocking—demeaning the sexual experience by perverting it . . . it is part of the underworld press—the growing world of deceit in sex, and it is not reality or honesty, as they often claim it to be. It represents an emotional incapacity to view sex as a basic part of the human condition.” After the panel, I did some research and discovered that when Judge Tyler retired, he said, referring to the Deep Throat decision, “If I were to write that appendix today, I would be deemed a fool, given the substantial change in our outlook.” Given the recognition of Crumb, Pekar, and many other underground creators , I think he would agree that the statement would equally apply to the Zap Comix decision. I found out Judge Tyler died in January at the age of 90.

Brownstein next discussed the 1973 decision in Miller v. California, in which the United States Supreme Court laid down the standard for constitutes unprotected obscenity for First Amendment purposes. (I’m not sure I mentioned it earlier, but it is clear that “obscenity” is not protected by the First Amendment.) Brownstein then articulated what has become known as the Miller test for determining what constituted obscene material. The test has three parts:

1. Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The work is considered obscene only if all three conditions are satisfied. (I should add that the first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole.) Brownstein added that After the Miller decision, content businesses braced for combat and many shops simply removed questionable material from their sheleves. Basically, it was a fatal blow for Underground Comix.

Spidey vs. Drugs

An interesting thing happened in the lates 60s/early 70s, while the underground was dying, mainstream comics were thriving. Brownstein discussed that in 1971, Stan Lee, at the request of the government, wrote a Spider-Man comic dealing with drug abuse. This comic violated the Comics Code and did not receive approval, but Marvel still released the book. The success of the issue and the importance of the issue led to the amendement of the code to allow drug use so long as it was depicted as a viscious habit.

Through some post panel research, I discovered that the book was requested by the United States Department of Health, Education and Welfare. The three issue story ran from #96–98 (cover date of May–July 1971) . I should also mention that the Comics Code at the time did not specifically forbid depictions of drugs.  Instead, Marvel ran afoul of the a clause prohibiting “All elements or techniques not specifically mentioned herein, but which are contrary to the spirit and intent of the code, and are considered violations of good taste or decency”.  At the time, acting administrator John L. Goldwater, publisher of Archie Comics, refused to grant Code approval based on the depiction of narcotics being used, regardless of the context.  For those of you really interested, I should add that I remember, from a previous panel that the CCA had previously approved a story involving drugs, in Strange Adventures #205 (Oct. 1967), in which Deadman fought opium smugglers.  But I digress.

Fandom Carries the Torch

The panel next moved into how organized fandom saved comics through the use of conventions and specialty stores. These led to the creation of what has become known as the Direct Market and for bringing Japanese Manga to be introduced in America. As a result, the 1980s saw a huge surge of comics published for adults. Brownstein cited numerous examples of both independent books (like Fantographics, Cerebus, and Elfquest) and the experimentation done by Marvel and DC (like Epic Illustrated and Alan Moore’s run on Swamp Thing).  However, the new comics revolution really started with the release of the Dark Knight Returns and Watchman, which put comics on the forefront as a means to offer commentary on society.  Also at this time, Viz Media began to bring Manga to American audiences with more adult themes and simple line art. In short, comics (along with pop culture, in general) were being viewed as having artistic merit.

Of course, with the increased exposure and recognition of artistic merit came added exposure and, at times, overzealousness on the part of law enforcement authorities. On November 18, 1986, police officers had come into the shop, and seized seven comic titles, including Omaha the Cat Dancer, Weirdo and Heavy Metal. They also arrested the store manager, Michael Correa, on charges of displaying obscene material. Ultimately, Correa was fined $750.00 and sentenced to one year probation.  Brownstein then commented that, after the long history of oppression, the comics industry wasn’t going to be beaten down again. So, Denis Kitchen got some money together, hired a lawyer named Burton Joseph who was a well-known attorney who specialized in First Amendment cases. Joseph got the Correa conviction overturned.

I found out after the panel  that Kitchen felt a personal sense of responsibility because his company, Kitchen Sink Press published Omaha the Cat Dancer, one of books sold by Correa that resulted in his arrest.  Kitchen then created limited edition prints (made by some of the biggest names in the industry) and raised around $20,000 (including his own personal contributions), which was put into a bank account for the Comic Book Legal Defense Fund.
Brownstein stressed that he couldn’t discuss the work by the organization is done before a case is filed. So, most of the work done by the CBLDF is never seen. Brownstein did specifically mentioned some of the cases that the CBLDF assisted with:

• Comic artist Paul Mavides prevailed against a resolution by  the  State of California to levy a sales tax on comic strips and comic books with  assistance from the CBLDF
• Florida based underground comic book artist Mike Diana was convicted for obscenity stemming from his self-published Boiled Angel. The CBLDF was unable to overturn the conviction and Diana served his sentence in New York.
• Comic book artist Kieron Dwyer was sued by Starbucks Coffee and was forced to comply with an injunction saying could no longer use his logo for its confusing similarity to that of Starbucks.
• Although not mentioned in the panel, the CBLDF filed a friend-of-the-court brief (amicus Brief) in Schwarzenegger v. EMA, successfully urging the Supreme Court to affirm the Ninth Circuit’s decision that a California law banning the sale or rental of any video game containing violent content to minors, and requiring manufacturers to label such games, is unconstitutional. I attended to the oral argument.

Manga Under Attack

Final Statements

Last June, CBLDF joined the ACLU of Utah and the Media Coalition in an effort to bar the enforcement of Utah House Bill 260, a law that seeks to restrict constitutionally-protected speech. US District Judge Dee Benson heard arguments about the case this week, but he didn’t issue a ruling. Instead, he directed the parties involved with the case to resolve their differences over two contentious sections of code in the law within the next 30 days.

House Bill 260, introduced in 2005, called for a rating system for websites and a registry of websites that contain adult content, tools that consumers could use to block sites. According to lawmakers, only internet providers in Utah would be subject to the regulations, but the the organizations challenging the law felt it violated interstate commerce laws and placed unconstitutional limits on speech.

The Salt Lake Tribune covered the this week’s arguments, relating the concerns free speech advocates have over the law:

“Meant to restrict children’s access to harmful material on the Internet, the law instead unconstitutionally limits the free speech rights of Internet content providers, may negatively impact Internet users who have no wish to restrict the sites to which they have access, acts as a prior restraint on Internet providers’ speech, and violates the Commerce Clause of the U.S. Constitution,” the ACLU argued in court documents.

…

Artist Nathan Florence, a plaintiff in the suit, is challenging an aspect of the law that requires labeling of websites as “harmful to minors” in some cases. The ACLU alleges the law considers visual art, photography, graphic novels, sexual health information and information about rights for the lesbian,gay, bisexual and transgender communities “harmful to minors.”

In their press release about this week’s hearing, the ACLU of Utah writes:

Today, the ACLU of Utah as a plaintiff along with a coalition of booksellers, media companies, and artists, will argue a set of critical motions in the case of Florence v. Shurtleff, No. 05-CV-485 (United States District Court, District of Utah). In its motion, the ACLU of Utah seeks a ruling from the federal district court that a Utah statute restricting speech on the Internet is unconstitutional. Utah’s law seeks to regulate all Internet speech that may be considered “harmful to minors.” The law goes beyond constitutional limits, however, because it would result in restrictions on visual art, photography, graphic novels, and information about sexual health and the rights of lesbian, gay, bisexual, and transgender youth. For their part, the Utah Attorney General and the County Attorneys defending the law have made motions seeking to dismiss the lawsuit, or for a judgment that the law is constitutional. They contend that certain changes to the law since 2005 have solved the statute’s constitutional problems and that, in any event, plaintiffs have no standing to sue anymore.Since August 2006, a preliminary injunction agreed to by both sides has blocked the enforcement of the challenged sections of the statute. At today’s hearing, the ACLU of Utah will request that this injunction be made permanent.

The Plaintiffs will be represented at the hearing by Michael Bamberger and Richard Zuckerman, partners of SNR Denton US LLP. “We do not agree with the defendants that the changes in the law after 2005 save this statute,” said Mr. Zuckerman. “The defendants are essentially asking us to trust them not to prosecute people who post words and images on websites, because their current view is that the law does not apply to Internet speech. Of course, their opinion could change at any time in the future, and such assurances do not make the statute constitutional,” he continued. “Utah may properly restrict one-to-one ‘harmful to minors’ communications made to a specific minor, but this statute goes far beyond that,” he concluded.

For more on the case, visit The Salt Lake Tribune, the ACLU of Utah, and the Media Coalition. CBLDF’s announcement about the case can be found here.

Please help support CBLDF’s important First Amendment work by making a donation or becoming a member of the CBLDF!

This week, the American Library Association’s Office of Intellectual Freedom released their list of the Top Ten Most Frequently Challenged Books of 2011. The second-most challenged book on that list was The Color of Earth, the first book of a critically-acclaimed Korean manwha, or comic book, series. In spite of numerous positive reviews from Booklist, Publishers Weekly, the School Library Journal, and other outlets that praise the book as “richly literate and imaginative” (Booklist) and “a work of great humanity” (Publishers Weekly), the coming-of-age tale is challenged due to nudity, sexual content, and suitability for age group.

Macmillan, which owns First Second, the imprint that published the book, describes the story:

First love is never easy.

Ehwa grows up helping her widowed mother run the local tavern, watching as their customers — both neighbors and strangers — look down on her mother for her single lifestyle.  Their social status isolates Ehwa and her mother from the rest of the people in their quiet country village.  But as she gets older and sees her mother fall in love again, Ehwa slowly begins to open up to the possibility of love in her life.

In the tradition of My Antonia and A Tree Grows in Brooklyn, from the pen of the renowned Korean manwha creator Kim Dong Hwa, comes a trilogy about a girl coming of age, set in the vibrant, beautiful landscape of pastoral Korea.

When it comes to manwha, creator Kim Dong Hwa is a revered household name in Korea, and The Color of Earth is the first of his books to be translated into English. Brigid Alverson with CBR’s Robot 6 caught the story and talked to Calista Brill, the editor of the book:

I checked in with the folks at First Second, a publisher more at home on ten-best lists than most-challenged lists, and this is what Calista Brill, who edited the book, had to say: “We knew we were risking challenge when we published these books. But sexuality is a part of the adolescent experience, and The Color of Earth and its sequels handle this conversation with remarkable honesty and positivity. These books may have ruffled some feathers, but we remain very proud of them.”

Alverson describes the book’s award-winning pedigree:

As is often the case with frequently challenged books, this one has some critical support: the Young Adult Library Services Association (YALSA) named it to its Great Graphic Novels for Teens list in 2010, the Texas Library Association’s Maverick Graphic Novels List and Booklist’s Top 10 Graphic Novels for Youth. Interestingly, assuming the list is in order of the number of challenges, this book racked up more challenges than The Hunger Games and frequent fliers like Phyllis Reynolds Naylor’s Alice books, Sherman Alexie’s Diary of a Part-Time Indian, and of course, To Kill a Mockingbird.

CBLDF is an official sponsor of Banned Books Week, which will occur this September 30 – October 6. Banned Books Week is dedicated to “celebrating the freedom to read and the importance of the First Amendment.” CBLDF is currently creating tools for retailers and librarians to raise awareness of important challenged and banned comics and graphic novels during this year’s 30th Anniversary Banned Books Week Celebration. To get a headstart on the festivities, please check out the CBLDF Rewards Zone, where we have items such as our I Read Banned Comics t-shirt available to help raise money for this important program.

You can also help support CBLDF’s important First Amendment work by making a donation or becoming a member of the CBLDF!

ABC 15, an Arizona affiliate is reporting that a sweeping electronic media censorship bill passed by the state’s legislature last week and headed to Governor Jan Brewer’s desk for signature has been pulled back in the wake of public outcry. Last week, CBLDF called attention to the bill and its constitutional deficiencies, helping to spark a wave of media coverage that turned the tide against the bill.

Lawmakers intended the law to protect people from online stalkers and bullies, but the law was so broadly worded that it would apply to the internet as a whole, not one-to-one communications, and the legislation does a poor job of defining the material that would run afoul of the law. As a result, anyone posting constitutionally-protected material could face charges if an individual deemed the material was intended to “annoy,” “offend,” “harass,” or “terrify.”

Media Coalition, a trade association that advocates for the First Amendment rights of content producers and whose membership includes CBLDF, wrote a letter addressing the root problems with the bill:

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

Speech protected by the First Amendment is often intended to offend, annoy or scare but could be prosecuted under this law. A Danish newspaper posted pictures of Muhammad that were intended to be offensive to make a point about religious tolerance. If a Muslim in Arizona considers the images profane and is offended, the paper could be prosecuted. Some Arizona residents may consider Rush Limbaugh’s recent comments about a Georgetown law student lewd. He could be prosecuted if he intended his comments to be offensive. Similarly, much general content available in the media uses racy or profane language and is intended to offend, annoy or even terrify. Bill Maher’s stand up routines and Jon Stewart’s nightly comedy program, Ann Coulter’s books criticizing liberals and Christopher Hitchens’ expressing his disdain for religion, Stephen King’s novels or the Halloween films all could be subject to this legislation. Even common taunting about sports between rival fans done online is frequently meant to offend or annoy and is often done using salty and profane language.

While going through the legislature, the bill garnered little notice from the press. After the release of the Media Coalition letter, other outlets picked up on the story, including Time, MSNBC, Yahoo, Digital Media Wire, Gizmodo, and many more.

CBLDF recognized that the law could create vulnerabilities for cartoonists and publishers. Beyond the example of the Mohammad cartoons listed in the Media Coalition letter, the taboo-pushing work of cartoonists like R. Crumb, Johnny Ryan, and Ivan Brunetti would potentially be vulnerable to prosecution, as could incendiary works such as Frank Miller’s Holy Terror and Dave Sim’s Cerebus.

CBLDF’s sharing of the Media Coalition letter caught the eye of various outlets, including Forbes, CBR, Alex Jones’ Prison Planet, The New American, Anime News Network, Tech Crunch, and more.

The Media Coalition recognizes that protecting people from harassment is a worthy goal, but they also know that it cannot be done by criminalizing constitutionally-protected speech. There is some hope that in pulling the bill, legislators are amending it to address the concerns raised by the Media Coalition and other groups. In the meantime, the Media Coalition is maintaining updates on their website here. CBLDF will also stay on top of the story and post updates as they become available.

Please help support CBLDF’s important First Amendment work and reporting on issues like this by making a donation or becoming a member of the CBLDF!

Betsy Gomez is the Web Editor for CBLDF.

Yesterday, the Arizona legislature passed Arizona House Bill 2549, which would update the state’s telephone harassment law to apply to the Internet and other electronic communications. The bill is sweepingly broad, and would make it a crime to communicate via electronic means speech that is intended to “annoy,” “offend,” “harass” or “terrify,” as well as certain sexual speech. Because the bill is not limited to one-to-one communications, H.B. 2549 would apply to the Internet as a whole, thus criminalizing all manner of writing, cartoons, and other protected material the state finds offensive or annoying. The Bill is currently on Governor Jan Brewer’s desk awaiting her decision on whether to veto or sign the bill.

Media Coalition, a trade association protecting the First Amendment rights of content industries, whose membership includes CBLDF, has been active in opposing the bill. On March 14, Media Coalition sent a memo to the Senate Rules Committee regarding constitutional infirmities in H.B. 2549. Yesterday they sent a letter to Governor Brewer urging her to veto the bill.

That letter outlines the constitutional deficiencies in the bill:

H.B. 2549 would make it a crime to use any electronic or digital device to communicate using obscene, lewd or profane language or to suggest a lewd or lascivious act if done with intent to “annoy,” “offend,” “harass” or “terrify.” The legislation offers no definitions for “annoy,” “offend,” “harass” or “terrify.” “Electronic or digital device” is defined only as any wired or wireless communication device and multimedia storage device. “Lewd” and “profane” are not defined in the statute or by reference. “Lewd” is generally understood to mean lusty or sexual in nature and “profane” is generally defined as disrespectful or irreverent about religion or religious practices.

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

Speech protected by the First Amendment is often intended to offend, annoy or scare but could be prosecuted under this law. A Danish newspaper posted pictures of Muhammad that were intended to be offensive to make a point about religious tolerance. If a Muslim in Arizona considers the images profane and is offended, the paper could be prosecuted. Some Arizona residents may consider Rush Limbaugh’s recent comments about a Georgetown law student lewd. He could be prosecuted if he intended his comments to be offensive. Similarly, much general content available in the media uses racy or profane language and is intended to offend, annoy or even terrify. Bill Maher’s stand up routines and Jon Stewart’s nightly comedy program, Ann Coulter’s books criticizing liberals and Christopher Hitchens’ expressing his disdain for religion, Stephen King’s novels or the Halloween films all could be subject to this legislation. Even common taunting about sports between rival fans done online is frequently meant to offend or annoy and is often done using salty and profane language.

While protecting people from harassment is a worthy goal, legislators cannot do so by criminalizing speech protected by the Constitution. All speech is presumptively protected by the First Amendment against content-based regulation, subject only to specific historic exceptions.

If passed, the law could create vulnerabilities for cartoonists and publishers who publish material online intended to shock, satirize, and criticize. Beyond the example of the Mohammad cartoons listed in the Media Coalition letter, the taboo-pushing work of cartoonists like R. Crumb, Johnny Ryan, and Ivan Brunetti would potentially be vulnerable to prosecution, as could incendiary works such as Frank Miller’s Holy Terror and Dave Sim’s Cerebus. Similarly, the culture of message boards, within and beyond comics, would be imperiled. With more titles released digitally each week, and an extremely active online ecosystem of professional and fan exchange, laws like this one are extremely worrisome for the creators, publishers, and readers of comics.

For more information about this bill, please visit Media Coalition.

Charles Brownstein is the Executive Director for Comic Book Legal Defense Fund

Last week, CBLDF announced that Canadian criminal charges against American comics fan Ryan Matheson had been dropped. In turn, Matheson spoke out on his own behalf in a lengthy statement about how he was treated by Canadian authorities, a statement that imparted the indignation and confusion any innocent comics fan would feel after being exonerated from a crime he or she did not commit.

Several news outlets covered the story. Brigid Alverson at Comic Book Resources has been on top of the story since CBLDF announced the case last year. In her reporting on the dropped charges, she details Matheson’s arrest and mistreatment:

The customs officer went to his supervisor’s office and checked the definition of child pornography in the Canadian criminal code before deciding to detain Matheson. (The border officers’ statements are unclear as to at what point Matheson was officially placed under arrest and whose decision it was to arrest him.) The officer read Matheson his rights, and Matheson said he did not want to contact a lawyer or the U.S. Embassy. Matheson said in the court papers that at this point “he did not think that anything was ‘seriously wrong,’” because the court officers repeatedly referred to the image as “borderline.” They also told him that he could speak to someone from the U.S. Embassy “anytime” if need be. “Several times that day I was told that I was going to be let free, but through delays and uncertainty of the situation the police finally decided to arrest me,” Matheson said in his statement to CBLDF.

At this point, the customs officers called the Ottawa Police Services. The police officer who responded later wrote in his report that “they were not sure if the images constituted pornography.” He spent about two minutes looking at the image, then called a detective from the high-tech crime team who told him, without actually seeing the image, that it would be child pornography. She asked that Matheson be arrested and taken to the police station. Although the situation had escalated at this point, the police did not read Matheson his rights or give him the opportunity to call a lawyer until more than an hour later.

Matheson was taken to the Ottawa Police Central Division cellblock. At this point, he had been traveling or in detention for over ten hours, but when he asked for something to eat, he was mocked or ignored. He was given a muffin the next morning, and although the cells were cold, he was not given a blanket. “I politely asked an officer at the police station if I could speak to the U.S. embassy, but she replied, ‘Are you serious? I don’t think we have that here,’ and walked away,” Matheson said. “I was never able to talk to the embassy and even when my brother arrived for my bail, he too was denied from seeing me at all. Police officers who transported me would slam metal doors on my head and laugh at me, saying, ‘this one’s easy!’ And finally, after being transported to the long-term detention center, guards would torment me with phrases like, ‘you know, if you get raped in here, it doesn’t count!’ I was jailed for five days before bail, longer than most people.”

Although Matheson had no criminal record, the first prosecutor in the case set stringent bail conditions for his release. “My bail conditions tightly restricted my use of computers and the Internet,” Matheson said. “My conditions had even specifically named a single company I could work for, which prevented me from advancing my professional career. I am a computer programmer and I’ve been in love with computers ever since I was seven years old. To place such overbearing conditions on me was heart-wrenching and very difficult to endure.”

If you missed it, CBLDF Executive Director Charles Brownstein spoke with Tom Spurgeon at The Comics Reporter at length about the case. When asked about why the prosecution dropped the charges, Brownstein said:

I think that the facts were very bad for the prosecution. Ryan was outrageously mistreated in the course of his ordeal: his search was not conducted in a constitutionally valid fashion; he was denied access to counsel; he was denied basic necessities like food and blankets; he was denied access to the American embassy; he was taunted by police who actually told him he could be raped.

And the art in question had unquestionable artistic merit, was not obscene, and was not child pornography. One of the two images that we believe to have been at issue is this Moe style parody of the “48 positions,” which is a kind of Japanese Kama Sutra, which is itself a parody of the 48 Sumo positions. This link has background on the source images.

Jason Thompson at io9 also discussed the reason why the charges were dropped:

Shortly before the February 2012 trial date, the charges were dropped. Charles Brownstein, executive director of the CBLDF, said in an interview with The Comics Reporter that the breakthrough in the case was a change in prosecutors, as well as a strong defense from the legal team — Michael Edelson and Solomon Friedman of Edelson Clifford D’Angelo LLP — that the new prosecutor may have thought hard to beat. The defense begins with the argument that the Canadian customs officers overstepped their roles and acted as agents for the local police force, never telling Matheson when his routine customs search became a criminal investigation. Edelson also invoked free speech and cruel and unusual punishment, to quote from the Charter Notice:

“He had his liberty restrained (and still does because of his bail conditions). He had his  private property taken. He had his hard drive, which contained intimate details of his life, searched relentlessly. He was made to feel physically uncomfortable and then psychologically threatened in a foreign country with no access to his embassy…

“The images in question do not depict real people. They do not depict real children. They are fictional comic characters. Society’s interest in seeing Mr. Matheson stand trial for the possession of these images, after the way he has been treated, is minimal at best. The images in question do not offend moral sensibilities the way real depictions would, nor is there danger or risk posed to children.

“Given the way that the Applicant has been treated, the conclusion necessarily follows that the admission of any evidence obtained after his referral to secondary inspection would tend to bring the administration of justice into disrepute.”

Laura Hudson covered the case for Comics Alliance, noting that Canadian authorities have held a “dim view of manga content” for a while. She related a story that Alverson wrote in 2006 about a female manga fan who faced Canadian authorities:

The dim view of manga content by Canadian border authorities is echoed in a disturbing 2006 blog post pointed out by Brigid Alverson, where a Canadian woman named Elizabeth McClung described her experience bringing manga across the Canadian border:

Saturday, I was surrounded by six officers, two watching me as the four others went page by page through my books looking for pornographic images and other evidence I was a sexual predator. How did this happen? I said a word which Canada Customs considers dirty: Manga. As soon as I declared that I had some of the Japanese-inspired comic books called manga, a Custom’s officer said, “That’s the stuff from Japan; there is some really obscene and filthy stuff.” No, I pointed out, these were printed in America and very mainstream. As more and more officers were called in, the six manga books I had were examined in detail. They were looking, they told me, for pornographic, obscene and adult material. “The age rating is on the back of each book.” (each manga book has ratings like 13+ or 15+ — mine were 13+). I was informed that I could have put different covers on or done anything else I could to get the pornography in and that if I spoke anymore, the books would be seized. So I stood there and watched my previously new books get examined page by page, thumbed through and pressed open because it was assumed if I read manga, that I was a sex offender.

Thompson sums up for io9:

In short: thanks to a strong legal defense and sticking to his guns, Matheson is cleared of charges, but Canadian customs is still infamously intrusive, prudish and unaccountable to the public, recently condemning and confiscating not only extraterrestrial shapeshifting ageplay dojinshi but also The Snuff Taker’s Ephemeris, a magazine about snuff tobacco (it had a nude painting in it); Black Eye, a black humor comics anthology; and Miki Aihara’s ages-13-and-up Tokyo Boys and Girls (customs officer: “That’s the stuff from Japan; there’s some really obscene and filthy stuff!”).Matheson’s ordeal is over, well, mostly: he’s still $45,000 in the hole for legal charges related to his defense, despite the CBLDF and CLLLF raising over $30,000 for his case. Make a contribution at cbldf.org. Considering Matheson’s passionate statement in his defense, I can’t help but think he’d also make a good speaker on censorship issues, if any anime convention this summer is looking for a guest.

The Beat also covered the story, making a statement that strikes home:

Although we often joke here at the Beat about the affability of Canada as a nation, this is a pretty disturbing story.

If you’re traveling across an international border with comics, please read Know Your Rights — Tools For Travelers Crossing International Borders. CBLDF Executive Director Charles Brownstein lays out some tools you can use to protect yourself from intrusive searches and arrest.

Please help support CBLDF’s important First Amendment work by making a donation or becoming a member of the CBLDF!

Betsy Gomez is the Web Editor for CBLDF.

Last week, the Comic Book Legal Defense Fund announced that criminal charges had been dropped in R. v. Matheson, a case involving an American manga reader who was wrongly accused of importing child pornography into Canada because of comic book images on his laptop. Ryan was extensively, wrongfully searched and detained by the Canadian government who charged him with a crime before he even entered the country. Read the story in his own words here. The CBLDF provided financial and substantive legal support in his case, and is currently fundraising to help pay off his $45,000 legal debt.

While the good news is that Ryan’s ordeal is now over, the bad news is that this kind of prosecution can happen again. To help travelers crossing borders with comics, the CBLDF is pleased to offer important resources that you should read before you cross a foreign border. These tools aren’t designed to take the place of your lawyer. Nothing in them is intended as legal advice. But they are important overviews of the concerns travelers now face when crossing borders with comic art in printed form and on their digital devices, and must reading for everyone in those situations.

Legal Hazards of Crossing International Borders With Comic Art — Prepared by Davis Wright Tremaine, this general advisory addresses issues concerning entering the United States with expressive materials, provides an overview of the phenomenon of border searches of expressive materials, describes the basic legal framework governing such searches, and offers some general suggestions for international travelers planning to transport expressive materials.

Pornographic Anime and Manga Under Canadian Law — Prepared by Edelson, Clifford, D’Angelo, in light of the issues faced in R. v. Matheson, this memo addresses the disposition of Canadian law towards anime and manga, outlines the powers of Canada Border Services Agency, and provides a detailed discussion of the definition of child pornography under Canadian law, alongside the related sentencing guidelines and defenses for that offense.

Electronic Devices Privacy Handbook: A Guide To Your Rights — Prepared and hosted by the British Columbia Civil Liberties Association, this handbook is focused on privacy issues concerning travelers crossing the Canadian border with electronic devices. This tool addresses your rights at the Canadian border, including a discussion of the Customs Act, an overview of CBSA policies, best practices when crossing the Canadian border, and information on what to do if you’ve been searched.

Defending Privacy At The U.S. Border — Prepared and hosted by the Electronic Frontier Foundation, this resource provides an overview of privacy issues at the U.S. border, and detailed tips on how to protect your privacy and data, and what to do when interacting with border agents.

Please help support CBLDF’s important First Amendment work and creation of more tools like these by making a donation or becoming a member of the CBLDF!

Charles Brownstein is the Executive Director for Comic Book Legal Defense Fund

Of the art, Brownstein said:

While both of these comics are adult material, I can’t see any reasonable adult viewing those images and convicting them as depictions of child sex abuse. Particularly in the context of the expert testimony we were prepared to deploy.

He also discussed the big picture of these types of prosecutions:

Ultimately, I think these issues are still very much in play both internationally, and here in the United States. And I think that they’re an easy get for prosecutors because individuals tend to be automatically predisposed to assume guilt wherever an allegation of child pornography is made. Even in this case, where the charges against Ryan were dropped, and he’s been cleared of any wrongdoing, you’re still seeing a lot of internet comments suggesting that he must have possessed some form of child pornography. Well, no, he didn’t. If he did, there’s not a reality in which the Crown wouldn’t have proceeded to trial.

Brownstein sees this as a call to action for comics lovers to stand united in the face of censorship. He said:

This is one of those rare moments where Benjamin Franklin’s famous quote, “We must, indeed, all hang together, or most assuredly we shall all hang separately,” is the most potent and accurate assessment of our current situation. Even today I saw a lot of discussion that it’s okay for authorities to prosecute the really icky stuff. But when you look at the actual images Ryan was prosecuted for, it’s clear that the authorities have a much lower threshold for what constitutes the really icky stuff than the average person who’s ready to sell their fellow comic book reader, retailer or artist down the river.

If Ryan were convicted for possessing that Moe 48 Positions, what chance does the average indy cartoonist going to TCAF have of carrying stuff into the show without hassle, much less fear of arrest? What hope does a retailer who orders from the adult order form for his store have when that stuff is in his internet cache? We’re a field that thrives on the power of the static image, and while our communities have our own understandings of what’s acceptable and what’s taboo, our understanding may not always square with that of local law enforcement. I’m not saying these things to stir up fear, I’m saying that equivocating about what kind of censorship is acceptable to us, as individuals, creates cracks in our armor that can bring censorship down on our field as a whole.

Read The Comics Reporter for the full interview.