Defending the Art: Charles Brownstein of the Comic Book Legal Defense Fund
Since 1986, the nonprofit Comic Book Legal Defense Fund has been defending the First Amendment rights of comics and graphic novels creators, retailers, and readers. They’ve defended dozens of cases in the decades since, and they are now working on one involving a young American man stopped and charged by customs in Canada for possessing comics they found offensive on his laptop. We talked to the CBLDF’s executive director, Charles Brownstein, about that troubling case and the organization’s ongoing efforts to protect free speech.
Roughly how many cases do you take on or become involved with each year?
It varies. We have two types of cases: active criminal defense and advocacy litigation.
Our active criminal defense work is when we're funding and assisting with strategy on criminal cases in court, such as we're doing with our current case involving Canada Customs.
Advocacy litigation is when we participate as members of a plaintiff group to fight unconstitutional laws that could affect the creation, sale, display, or consumption of comics. We have a few to several of those going on at any given time, and most recently helped kill an Alaska law that would have severely censored Internet speech.
We also write or join Amicus Briefs, or friend of the court briefs, at the appellate level from time to time. In these instances, we argue from our industry's point of view in cases where the precedent could be harmful to comics. Most recently our Amicus Brief in Brown v. EMA helped put down a California law that would have broadened the state's power to regulate violence and made violent content a form of unprotected speech. Our brief was cited in Justice Scalia's majority decision and helped shape the overall decision by citing comics' history of censorship as a result of moral panic calling for government intervention.
Are there multiple cases you are working on currently?
We're currently assisting a case involving an American who faces criminal charges in Canada for carrying comics on his laptop. The defendant faces a mandatory minimum sentence of a year in prison and registering as a sex offender. It's a profoundly unjust case, and one that we're helping to raise money to defend, as well as assisting in gathering experts and offering strategy. We are also part of a coalition to fight an unconstitutional internet censorship law in Utah.
In your viewpoint, are legal challenges to comics (and those who read and sell them) getting more pervasive? That is, do you think things are improving or worsening in terms of what you do and how your services are needed?
The challenges are always changing. When the CBLDF started, our work was most urgently needed to protect small comic book stores from prosecutions by local authorities because of mature readers comics they sold to adults. In the ’90s, our work shifted to help artists who were being prosecuted by authorities. In the late ’90s and early 2000s, the pendulum shifted back to helping retailers, and at the same time fighting against laws that targeted the internet and that would have made it impossible for retailers to display "harmful to minors" material—work protected for adults, but nebulously illegal for minors because of nudity and sexual content. Now we are seeing an increasing surge of prosecutorial efforts directed at readers for the comics they own and on their digital devices.
There is always a fight directed against content, but the targets change. Comics have always been in the cross-hairs of whatever the fight is at the time, and the CBLDF maintains an aggressive stance to defend them. If we didn't it's unlikely comics' diversity of content would be so broad as it is today.
What can you tell us about the current Canadian case?
Right now, a young American computer programmer, whom we call Brandon, even though that's not his real name, is facing a mandatory minimum of one year in a Canadian prison and registering as a sex offender (which is reciprocal in the U.S.) for carrying manga on his laptop.
He was crossing the border to visit a friend and was pulled aside at Customs, where his books, bags, phone, iPad, and laptop computer were all searched extensively. After a long, bureaucratic search procedure, customs authorities found a handful of images from manga comics on his laptop that they alleged to be inappropriate and eventually they charged him with possessing importing child pornography for having these comics on his laptop. The images at issues are drawings; there's no photographic material or any criminal conduct involved.
The CBLDF has been tracking increases in customs searches on both sides of the border, and this is the most serious incident that's come to our attention. Our board of directors unanimously agreed to help raise funds to support the legal bills, which are expected to run $150,000, and to help provide expert testimony and legal strategy.
What are the ramifications of this case? If the defendant is convicted, what kind of precedent would it set?
If the defendant is convicted, it sets a very bad precedent for readers and retailers in Canada. It also creates a chilling example for other customs agencies with regard to travelers rights with regard to the expressive content they travel with on their devices or otherwise. While Canadian decisions don't have jurisdiction in the United States, an adverse decision in this case could inform U.S. Courts dealing with comics and manga in future cases here.
The bottom line is that nobody should go to jail for comic books. We're seeing a person traveling with his own private reading material being prosecuted for artwork he carried. That's a clear example of the government overstepping their boundaries, and one we think it's important to fight.
For more information on this case, please visit http://cbldf.org/about-us/case-files/cbldf-case-files-canada-customs-case/
Even though this particular case is in Canada, could it also have an effect here in the States? Are there similar cases here in the U.S.?
There's definitely more and more cases of individuals being stopped and searched and having their information seized on both sides of the border. This week a judge heard oral arguments in a disturbing federal case involving a student whose laptop was searched and seized by the Department of Homeland Security on his way back from Canada to his home in the USA that you can read about here: http://blogs.nppa.org/advocacy/2011/07/11/judge-hears-oral-arguments-in-federal-case/. This is a growing issue, and a decision in Canada can have ripples here.
Why do you think the Canadian side is pushing forward with this case?
I don't ever speculate on the motivations of prosecutors.
What should other comics readers do to safeguard themselves against something similar happening to them?
We published an advisory about ways to protect yourself going through customs that you can read here: http://cbldf.org/resources/customs/advisory-crossing-international-borders/. In general, protect yourself, travel with as little data as possible, keeping most of it in a cloud, and send as much hard copy ahead as you can. It's a sad reality, but until the courts catch on to the fact that data is different from the contents of a suitcase, and as long as customs agents are poorly trained to determine the difference between art and physical evidence of a crime, caution is the best policy.
Are comics, manga, and graphic novels, in your view, unfairly targeted because of misperceptions about them and the audiences they’re intended for?
The thing I hear most frequently when talking to librarians and educators is that comics are a unique magnet for challenges because of their visual nature. Material described in a prose book needs to be imagined, whereas a comic book can be viewed in a cursory fashion and taken wildly out of context. As the category becomes more popular, the challenges become more frequent.
As its own category, manga draws a high incident of challenge largely from ignorance. The aesthetics of manga on the whole favor idealized, economical line drawings of fantasy characters that can look to the unknowledgeable viewer like something it isn't. Additionally, it is an art tradition that comes from a culture with a different set of taboos than we have in North America. The authorities have yet to grasp that people with a passion and respect for manga can take in the entire category, including material taboo in our culture, and in doing so are studying the art, not the taboo content. It's a big challenge.
If you could give all comics fans a warning, or let them know one thing they should all be aware of in regards to the law, what would it be?
I think Neil Gaiman summed it up best in his "Why Defend Freedom of Icky Speech" essay (http://journal.neilgaiman.com/2008/12/why-defend-freedom-of-icky-speech.html): "The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don't." Often people will disparage a case, or a genre, or a type of art because it pushes their personal discomfort buttons. But to protect a robust culture of art, even the stuff that makes one uncomfortable still must be defended. When the CBLDF was started, we were defending Elfquest and Robert Crumb. If we didn't defend that work, there's an open question as to whether both would be available as widely as they are for readers everywhere today.
What can comics fans do to help the cause?
Please visit www.cbldf.org and learn more about our work, and spread the word about it. It's important, expensive work, and we can't do it without donations from readers, so please give what you can afford. Most of all, stay informed. It's a changing world and our rights to expressive speech are always at risk. Please spread the word about the fund's work so we can continue to protect the vital creativity of comics.
