by Charles Brownstein
For more than 30 years, CBLDF has been assisting retailers with cases in which their First Amendment rights are threatened. While the kinds of cases we are called to defend have changed over time, laws that affect retailers remain in place. In this article, we’ll discuss the types of laws that have been used to prosecute comics retailers, prosecution trends, and best practices for preventing and managing risky situations.
What Is Obscenity?
The term obscenity is frequently misunderstood and has a specific legal meaning. In Jacobellis v. Ohio, a landmark 1964 decision, Justice Potter Stewart famously said of obscenity, “I know it when I see it.” Unfortunately, that guidance isn’t helpful to retailers looking to comply with the law. Thankfully, Justice Stewart didn’t have the last word — that came in 1973 with Miller v. California, the current standard for obscenity law, which introduced the benchmark test for obscene material, better known as the Miller Test.
Based on the Miller Test, a work is obscene only if it meets all three of the following conditions:
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 or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The first two prongs are held to the standards of the community in which the prosecution occurs. The third prong is held to the standard of a reasonable citizen of the United States as a whole. In other words, a jury or judge may determine that a work is contrary to the community standards of your state or city, but decisions about the work’s serious literary, artistic, political, or scientific merit must consider whether the whole of the country would find it without merit.
A work can only be found obscene in a court of law if it fails all three prongs of this narrow set of criteria.
A common misconception about obscenity is that any highly offensive content can be found to be obscene. There are many content areas that may be sensitive within a community or deemed indecent and highly offensive, but that don’t rise to the level of obscenity. These include:
- Adult nudity
- Sexual content, both explicit and inexplicit (short of meeting the Miller Test)
- Animal cruelty
Although the First Amendment protects your right to sell comics with this kind of content, it is still wise to be sensitive to the standards of your community. Likewise, you should always be careful in how you sell and display mature material. We’ll discuss some useful best practices and special considerations related to minors later on.
Types of Obscenity-Related Content Restrictive Laws
Obscenity laws cover a type of speech that is not protected by the First Amendment. These laws aim to stamp out lewd, immoral, and disgusting content, which has been defined by the courts to cover “[p]atently offensive representations or descriptions of ultimate sexual acts,” including “masturbation, excretory functions, and lewd exhibition of the genitals.”
Until recently, obscenity has been a common area of prosecution, including cases involving comic books, ultimately leading to CBLDF’s founding. Broadly speaking, obscenity prosecutions are a lower priority for the Justice Department today; however, cases still occur. It’s wise for retailers to have an awareness of how obscenity law works to insulate themselves from potential risks.
Harmful to Minors
“Harmful to minors” is a distinction for a type of law that defines categories of content as legally acceptable for adults, but not for minors. Broadly speaking, these laws aim to protect persons under 18 years of age from sexually explicit content that can be categorized as either pornographic or obscene by imposing criminal penalties upon violators.
Unlike obscenity, there is no conclusive Supreme Court opinion defining what makes a work harmful to minors. Instead, the characteristics of harmful to minors laws frequently reflect the prongs of the Miller Test, but as they would apply to a minor. These laws tend to be primarily concerned with depictions of explicit sexual content and lascivious nudity, and not with profanity, violence, or blasphemy. These last three categories may cause some adverse reactions, but they are not categories of content the law can restrict.
Harmful to minors laws vary based on jurisdiction, and we strongly recommend that you search for the laws in your state. Please reach out to CBLDF with any questions or concerns about how your state laws may affect your store.
The PROTECT Act, Child Pornography, and Obscene Visual Representations
Congress has passed child pornography laws that impact comics. The PROTECT Act, passed in 2003, is a sweeping law intended to combat child exploitation. It laudably expanded prosecutorial remedies to punish child sex offenses, but the law also expanded the definition of child pornography to include digital, computer, or computergenerated images that are, “or appear to be,” minors engaged in sexually explicit conduct. This law has been used to target readers of some explicit manga and has stoked concerns about other types of comics that address youth sexuality.
In addition to prohibiting computer-generated child pornography, the PROTECT Act criminalizes “[o]bscene visual representations of the sexual abuse of children,” which encompass “visual depiction[s] of any kind, including a drawing, cartoon, sculpture, or painting” that depict (i) a minor engaging in sexually explicit conduct and is obscene; or (ii) “an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and lacks serious literary, artistic, political, or scientific value.” This portion of the PROTECT Act has been found constitutional by some courts and unconstitutional by others, with the majority holding that it is governed by the Miller Test, if only in part.
The PROTECT Act has been used to prosecute anime and manga, including in cases CBLDF has aided. A frequent type of manga prosecution under PROTECT involves the import of books and doujinshi, or fan-produced manga publications. Retailers importing foreign comics should exercise care both in the types of material they import and how they declare the books or publications they’re importing. Don’t hesitate to contact CBLDF if you have questions, especially at the first sign of trouble!
Who Is Prosecuted?
In most cases, retailers and retail staff are at the greatest risk of prosecution in an obscenity case. That’s because police are targeting the sale and distribution of specific material. So, whomever sells, gives, or otherwise provides the material that prosecutors aim to prove as obscene is most vulnerable. Historically, this has been the clerk who sells a comic book.
Why Comic Book Stores?
The reasons for these prosecutions vary. In the early days of CBLDF, obscenity was hotly contested in the courts. Comic book stores were frequently targeted because they were small and often lacked the resources to adequately defend themselves in court, which increased the likelihood of prosecutors achieving conviction. Such a conviction created precedent that would make it easier to go after larger targets, such as adult bookstores.
There are also examples of prosecutions arising from complaints by parents and local morality groups targeting content. A common argument that still occurs today is that comics are designed for children, and therefore any material in a comic, even those aimed at older readers, will appeal to children because it is a comic book.
Thankfully, since CBLDF’s 2006 win over Georgia prosecutors who attempted to prosecute a retailer, these kinds of obscenity cases against comic book stores have grown rare. However, up until Georgia v. Gordon Lee, these cases occurred on a regular basis. Just because this kind of case is currently dormant, that doesn’t mean it’s wise to be complacent.
The Bottom Line
In recent years prosecutions of comic book stores have lessened, but stores should remain vigilant. Current trends in child-related obscenity prosecutions of comics tend to target readers and collectors, rather than retailers of expressive content. Retailers should still be conscientious about the sale and display of sensitive materials and remain informed about the law.
Although it’s good news that this type of prosecution has grown dormant, the risk of such cases recurring is ever-present, especially as cultural mores change. Today, CBLDF’s casework largely involves aiding educators and librarians with cases that relate most frequently to description and depiction of sexuality, especially LGBTQ+ content. As comic stories align more fully with the increasingly dramatic content found in other mainstream entertainment, it’s possible that negative attention could jump from the education or library environment to the comic book store.
Comic stores in localities in which graphic novels in schools and libraries are targeted should both stand in solidarity with those institutions and be vigilant about their own business practices with regard to locally sensitive content. Don’t self censor your selections, but know your rights! By being forewarned and conscientious, you can reduce your risks.
Best Practices for Preventing Prosecutions
Now that you have a basic grasp of the laws restricting content, let’s talk about some best practices to protect your store and employees.
Know Your Rights
You have the right to sell adult material. As scary as these topics are, expressive material is protected by the First Amendment; retailers have a right to sell — and customers have a right to buy — material containing graphic representations of adult sexual content.
Have a Lawyer
Every store should have a lawyer who can provide guidance on various areas of your business; just like doctors, lawyers provide a service that will cost money, but it needn’t be prohibitively expensive and is well worth the cost.
Establish Good Policies and Know Your Policies
Thinking through approaches to purchasing and displaying different kinds of content and articulating those concepts as policy is a good general practice and a useful way to get everyone in your store on the same page. If you’re an employee, take time to read the employee handbook and policies, and discuss them with your boss.
Develop Mindful Displays
Be mindful of local community standards in your display policies. Each community is different; a college town will have different concerns than a suburban strip mall. Recognizing that standards vary, here are some commonsense approaches that can be adapted as makes sense for your business. Your business may not need to do any of these things, or you may find a combination of them helpful.
- Segregate material for children into its own section. This reduces (but doesn’t eliminate) the risk of young children browsing mature content.
- Separate mature readers content from general audience content. This may include placing mature titles on a higher shelf, bagging and boarding, or creating a dedicated (and possibly blinded) section.
- Segregate adult material. Depending on your community, this can also mean different things. Potential approaches include merchandising on a higher shelf, putting the material in a dedicated section that may also be blinded, or placing it behind the counter.
Affirmatively ID Underage Customers
While it is not necessarily illegal for minors to purchase material recommended for mature or adult readers and the job of the comic store employee is not to act in loco parentis (in place of a parent), depending on your community, it may be a good idea to request ID from people seeking to purchase mature content who appear to be under 18 years old.
Talk to Your Customers
It may seem like common sense, but greeting your customers, asking them if they need help, and guiding them to the appropriate section can help clear up misunderstandings. This is especially important in dealing with parents. You needn’t be overly formal — sometimes stating that something may be a bit grown up for children is all that’s needed to defuse a sticky situation.
Be Involved in Your Community
One of the best ways to prevent conflicts is to be a visible and positive member of your community. Strong local involvement, whether that includes charity activities, library programs, reading groups, sponsorship of school and civic activities, or any number of other causes, help build strong roots and support in the community. Beyond being virtuous in itself, if a problem does occur, you’ll have friends to help you navigate them.