What is the mission of the Comic Book Legal Defense Fund? At first glance, the answer to this question seems to be obvious. After all, it’s right there in the name – legal protection for the comics industry, with no apparent limit on the matters it can address. This would appear to be supported by the reports and resources on CBLDF’s website, which include obscenity cases, library bans, a sales tax dispute, COVID assistance resources, and educational material for teachers and librarians.
However, as several of you have noted since I’ve joined as Interim Director, CBLDF has at times defined its purpose in a more limited way, stating that its charter expressly limits the scope of its activity to a narrow subset of First Amendment cases.
CBLDF’s purpose has been my focus over the past week and will likely continue to be so as we go into September. My own working hypothesis – and I want to underscore that this is just my personal perspective, not an official position of CBLDF – is that even without any changes to the language of the purpose section in its articles of incorporation and bylaws, CBLDF could continue its vital First Amendment work while also providing broader legal and educational support to creators, retailers, journalists, and others in need.
Purpose in Perspective
Here’s the purpose language contained in CBLDF’s charter documents:
The purpose of the Comic Book Legal Defense Fund (the “Corporation”) is to defend constitutional rights relating to speech and press and to assist with relief from arbitrary discrimination by authorities concerning or relating to the public’s access to comic books and other comic publications. The Corporation’s activities shall be solely in support of the foregoing purpose and in compliance with Section 501(c)(3) of the Internal Revenue Code, or corresponding section of any future federal tax code.
Arguably, the most important part of this purpose clause from the standpoint of nonprofit organizations law is the reference to Section 501(c)(3), which sets forth income tax exemption criteria for nonprofits commonly referred to as charities. It’s not uncommon for a charity simply to use the wording of the Section 501(c)(3) as its purpose – e.g., “This corporation is organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes.” Purpose clauses can also contain additional detail, whether due to a state law requirement, the founders’ or board’s decision to set more defined boundaries for the organization’s activity, or the desire to provide a succinct mission statement for fundraising and outreach.
With regard to the rest of CBLDF’s purpose clause, one thing that immediately stood out to me is it does not expressly limit the organization to First Amendment work. I can see where that might be inferred from the reference to “constitutional rights relating to speech and press,” but from the standpoint of constitutional jurisprudence, rights relating to speech and press go beyond the First Amendment itself.
For example, copyright is not just intrinsically related to freedom of press, but courts have recognized it as a constitutional right as far back as the 1824 Supreme Court ruling in Gibbons v. Ogden – a landmark case that, not coincidentally, also discussed the relationship between federal copyright protection and the regulation of obscene material. The constitutional character of copyright derives from Article 1, Section 8 of the Constitution, which gives Congress the authority to promote the progress of science (or as we would say now, knowledge) by securing for authors exclusive right to their writings for a period of time. Helping creators, publishers, journalists, and the comics community at large understand the copyright regime has a direct bearing on the freedom to publish a work and the extent to which authorities – whether governmental, corporate, or the authors themselves –can limit the public’s access.
Comics, Contracts, and Civil Rights
Moreover, the constitution’s Contracts Clause, Article 1, Section 10, prohibits state governments from “impairing the obligation of contracts.” This may seem like legal boilerplate designed to protect business deals, but its significance goes well beyond that: it is cited in hundreds of cases as the constitutional basis for safeguarding the freedom of contract and equal justice under the law.
What makes the Contracts Clause especially relevant to the comics community today is that when coupled with the Congress’ constitutional authority to regulate interstate commerce, it provides the conceptual foundation for civil rights. As a legal construct, civil rights refers not only to discrimination in the abstract but also to the legal framework governing private interactions, with contractual relationships a particular area of concern. The contractual character of civil rights law is evident in the Civil Rights Act of 1866, codified in 42 U.S.C. § 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts,” including “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
The constitutional and legislative protection of contract rights is inextricably related to censorship and comics’ freedom of speech and press. The origin of CBLDF illustrates this; when an Illinois police officer arrested the manager of the Friendly Frank’s comic shop for selling Omaha the Cat Dancer, Weirdo, Heavy Metal, and other books with explicit sexual content, the resulting legal action had a direct bearing on the store’s ability to enter into contracts, or sales agreements, involving these books. More generally, the integrity of the contractual relationship and the freedom to enter into equitable agreements has been a defining issue for the creators’ rights movement, while the right of creators to have access to the comics industry regardless of their race, sex, gender, physical abilities, mental health, and other legally protected traits is perhaps the defining issue of our time.
To see the importance of contracts and civil rights to traditional First Amendment concerns, we need only look to recent developments in the law of sexual harassment. In my next post, we’ll explore what the enactment of new civil rights protections for independent contractors mean for comics freelancers and industry culture, especially at comic-cons.
Besides posting here and on other sites, I’ll also be exploring ways to strengthen CBLDF’s present purpose-language in ways that maintain our current commitment to free speech while also preserving our ability to help with related issues. It’s clear that freedom and access are core defining values; everything builds from there. I see this project not as an expansion of our purpose but a reboot, returning to our root organizational DNA so we can better meet the diverse needs of today’s comics community.