CBLDF's Brownstein: Defending First Amendment Rights

A comics interview article by: Tim O'Shea
The Comic Book Legal Defense Fund (CBLDF) has always been an organization that I have respected immensely. When they recently made a plea for donations in anticipation of the long-running case of Georgia v. Gordon Lee finally going to trial (with court costs expected to hit $20,000) the week of August 13, I realized it might be a good time to interview CBLDF's Executive Director Charles Brownstein. (For further details on the case, which has racked up "$80,000 in legal bills" and ways to donate, please go here.) In addition to the upcoming Lee case, Brownstein informed me of other CBLDF efforts and his concerns on industry-related First Amendment matters.

Tim O'Shea (TOS): While Gordon Lee's next court date fast approaches, folks who may have forgotten the details of the case might like to know that CBLDF's efforts have already improved the situation--getting five of the seven charges against the owner dismissed in 2006. What exactly are the remaining charges he faces in August?

Charles Brownstein (CB): Gordon faces two charges of Exhibition of Harmful Materials to A Minor. The first count alleges that Gordon knowingly furnished and disseminated to a minor a publication containing pictures, drawings, and visual representation of sexually explicit nudity, sexual conduct, and sadomasochistic abuse which is harmful to minors. The second alleges that he knowingly furnished and disseminated to a minor a publication containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse, which , taken as a whole, is harmful to minors. If found guilty each charge carries penalties of up to a year in prison, and up to $1,000 in fines.

So: one count is alleging that he distributed sexually explicit pictures to a minor, another count is alleging that he distributed explicit written descriptions of sexual conduct. We're confident that the material at issue contains neither.

TOS: As a legal issues neophyte, I apologize, but what risk is there that the case may be further delayed?

CB: Anything can happen. Delays and continuances are not uncommon, and can occur for reasons as minor as scheduling conflicts on the part of one of the attorneys or key witnesses. Our fingers are crossed that this August date is firm, and we believe it will be. We all want to get through the trial so that Gordon can get back on with his life without this case hanging over him.

TOS: Over the years, as CBLDF's gotten involved in certain cases, have there been lessons learned that have made it feasible to resolve future cases in a less costly manner?

CB: It's the Fund's job to raise money to pay for the best legal counsel available to defend cases that affect our industry's ability to do business. As such, we're of the mind that, in the long run, the most cost-effective way to manage a case is to get the best counsel at the trial level, and to make the best effort possible to win at the trial level. It's better to spend $80,000 to win at trial, than it is to spend half of that on cheaper counsel and lose at trial and then be obligated to appeal.

This isn't to say that we measure counsel by how much they cost, but instead by how much experience and success they bring to the legal matter at hand. Often, the lawyers with the most experience,also have a higher hourly rate. Even considering that, we always seek the best deal we can get, and if we can get pro-bono work from the best counsel, that's great. But, bottom line, if you want to win, you need the best. The Fund works hard to make sure that we're getting the best representation we can find, and to secure the best rate we can, and the attorneys we work with understand our position and work with us on those matters.

Sometimes, as we're seeing in the Lee case, added expenses are unavoidable. If the prosecutors had handled their work properly, this case would have been over last year when we were first scheduled for trial. But instead we had our team in Rome ready for trial when, the afternoon before we were to stand before the judge, we got a call from the prosecutors telling us that they had their facts wrong and had to restart the case. Having the clock restarted at zero functionally doubled what this case should have cost, because we had to go through revising and refiling and reappearing for all of the motions that one must go through on the way to trial.

TOS: I was impressed with the amount of items that were on sale at the CBLDF booth at HeroesCon recently. Will CBLDF be at most of the major cons this summer? Are there other fund-raising events on the horizon?

CB: Well, I'm thrilled to hear you were impressed with the premiums we were offering! That's all thanks to the generosity of the creators and publishers who make this industry great. Most of the books we offer are donated by their authors or publishers, and signed by the authors. We're lucky to have such a broad and enthusiastic base of supporters.

And, yes, the Fund will be at as many of the major cons as we are able to for the rest of the year. Highlights are, of course, Comic-Con International: San Diego, Wizard World: Chicago, Baltimore Comicon, SPX, and Wizard World: Texas. I hope we're able to fit a few more in there.

We'll also be jumpstarting our NYC event campaign again this fall with the plan being to run at least one event per month from September through May each year, and then to take a break in the summer for the conventions. We hope to be able to perfect the event model in New York, and then to export it to other cities. So if there are any capable event planners reading this that want to do a good thing for Free Speech, please drop us a line and we'll see if the Fund can work with you to set up an event in your city. It's a volunteer gig, but the cause is good and grateful.

TOS: Speaking of recent events, how successful was the recent Strangers In Paradise Wrap Party in NY?

CB: It was great! We drew a capacity crowd and wound up raising over $7,000. And we got to see Terry and Robyn blush at various points in the evening, which was fun. But everyone had a great time. We had people come from all over the country to raise a toast to Terry & Robyn for all that they've accomplished, and to support the Fund. It was a great way for all of us to say thank you to the Moores, who are national treasures in the comics world, and two of the Fund's most ardent supporters.

TOS: There are always new talents entering the industry--with that in mind, are there any creators that have recently added their name to the long list of CBLDF supporters?

CB: Certainly, but I'm reluctant to single anyone out, for fear of forgetting someone else. The truth is, every show we go to, there are creators stepping forward to say, "how can we help?" Many help by donating their work -- either original art or signed copies of their comics and books that we use for auctions and donations. Others donate their time by participating in our sketch card program, where they agree to do a certain number of sketch cards which are available for a donation to the Fund at shows. Still others become members and spread the word. However someone decides to help the Fund, it's important to us and helps us do the work that's needed to protect the Free Speech rights of our business.

TOS: The legal and fiscal assistance that CBLDF provides is very tangible evidence of their impact. But as I was reading this recent article in the Rome News-Tribune, the local Rome, GA newspaper, I was struck by two things--how the article detailed the success that Legends free comic book day had been in 2006. Also the fact that Lee was covered by the local newspaper with no mention of his upcoming court case was a great sign. How pleased are you to see articles like that, even in the midst of ongoing court challenges, where the store is still viewed as a viable business in the community, rather than a pariah under criminal suspicion?

CB: I think it's very good, and is probably a strong indicator that the local community probably views this case with the same bafflement and irritation that we in the comics world do. I haven't spoken to a single reasonable person that isn't outraged when they hear the path this case has taken. That an accident, which Gordon would offer apology for, had led to charging him with two felonies and five misdemeanors. And then, after the felonies and three of the misdemeanors were tossed, that the prosecution continued to pursue the case up to the day before trial when they realized that they had their facts wrong. And then that they went at it all over again. I think people everywhere are stymied by how long this case has gone on and just want it to go away. I think that the articles you site show that Gordon is a valued and valuable member of the community, and that the community is pulling for him in this long fight to prove his innocence.

TOS: Do you think some people fail to completely understand the role of the CBLDF, particularly when they question CBLDF's level of support in certain industry situations? Do you consider it part of your job to inform folks about the overall mission of the CBLDF?

CB: Freedom of Speech has always been a divisive issue in the United States, and consequently, any group whose purpose is to protect that freedom is going to come under fire from time to time, and the Fund is no exception. And when we do, of course it's our job to let people know what the Fund is here for. Since 1986, we've been defending the First Amendment rights of retailers, artists, and others within the field against threats to their First Amendment rights. In most cases, those threats have taken the form of criminal prosecutions over comics content -- whether you're talking about Gordon Lee, or Jesus Castillo, or Mike Diana. In those cases, the Fund stepped up and retained counsel to fight in court to defend the rights of those individuals. There have been some cases where the prosecution has been from a State agency -- such as the California State Board of Equalization v. Paul Mavrides -- or a private company, such as Kraft v. Stuart Helm or Starbucks v. Kieron Dwyer, which have set out to quash those cartoonists' ability to create, distribute, or profit from their comic book art. The Fund has stood up in those cases as well. The Fund is here to watch after the First Amendment rights of comics -- the medium and the profession built around that medium. We stand behind the individuals who are under attack, with the knowledge that if they fall, the consequences for the rights of the rest of the field become more severe.

From time to time, you'll see that some people want the Fund to be a general legal aid group, but that's not what we do. We get several calls a year from people worried about a contract gone awry, or proper trademark registry, or an insurance dispute over a shop flood, or things of that nature, and we'll provide the best referral that we're able, but we're not here to manage those situations. We're here to ensure that people aren't going to jail because they're selling, or drawing, or publishing comic books. We're here to ensure that a larger economic power isn't able to stop artists from creating comics because they take issue with an aspect of their work that's protected by the First Amendment. For the Fund, it's always began and ended with defending the First Amendment so that comics can achieve the same level of protection and respect afforded our brethren in film, print, gallery art, and so forth. I think that we've achieved that goal in great measure over these past 20 years, although, sadly, there are still miles left to go.

TOS: Gordon Lee is clearly the CBLDF's most pressing case at present, but are there any other efforts you'd like to bring to people's attention?

CB: The Fund is always staying on top of changes in the law that would affect the First Amendment rights of the comics world through our membership with Media Coalition, and that continues. Most currently, we are participants in a challenge to knock out Utah's new harmful to minors internet law as unconstitutional, because it requires the Attorney General to make a blacklist of websites that he believes are harmful, and imposes criminal penalties upon such sites residing in Utah. There are other challenges in various stages of development as well. These challenges are taken up as a benefit of our Media Coalition membership, and are joined when the Board of Directors believes that there is a precedent issue at stake in the law which could adversely affect cartoonists, retailers, and publishers. It falls under my long-standing motto that it's better to prevent a case than defend a case. Knocking out bad law as a member of Media Coalition allows us to prevent the law from becoming a case that could affect one of our community members.

We are also in the process of beefing up our educational work. This August we will have the second edition of our library resource for graphic novels available, and in September we'll have the second edition of our Retailer Resource Guide out. We've also put Busted back on track with a new issue premiering at Comic-Con with a Frank Miller cover. By keeping our partners in the retail and library worlds aware of what's changing in the law, they are better armed with the knowledge they need to help them prevent a case.

In terms of legal challenges coming down the pike, I remain concerned about prosecutions under the PROTECT Act. PROTECT is a very troubling law, because so much of it is so good, and so much of it, so dangerous. It was passed in 2003 to combat sex crimes against children and includes a number of fantastic provisions, including the Amber Alert, stricter penalties for child sex tourism, and tougher penalties on sexual abuse of children. Unfortunately, for all that was good with the law, it also creates categories of thought crime. For instance, the law treats any drawings, sculptures, paintings, and so forth, that leads the viewer to believe that minors are engaged in sex as child pornography, whether or not an actual minor is depicted. Which creates a clear and present danger for books like A Child's Life, Blankets, and more pressingly, I think, countless manga.

I think manga may become the target for the coming wave of PROTECT prosecutions. We've already seen at least two convictions under PROTECT where people are going to federal prison for possession of child pornography, and among the materials they possessed was manga or anime. Actual child pornography is an indefensible crime, and my understanding is that in the cases I mention, there was actual child pornography involved. So, to a degree, these guys deserve what they get. I don't lose any sleep over someone who possesses pictures of children in sexual circumstances spending time in Federal prison.

However, I do lose sleep over the government sending people to jail for lines on paper, where no actual crime has been committed. Even if the material is morally repugnant, to arrest someone for possession or distribution of drawings with no connection to the real world save the paper its printed on, is an affront to free speech, and I fear, an emerging danger. It's a trend we're following very closely, and that I hope I'm wrong about. Nobody should go to jail over comic books.

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