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The Comic Book Legal Defense Fund Battles Censorship.

By Devin D. O'Leary

SEPTEMBER 8, 1998:  The Year was 1994. Mike Diana, creator of an all-but-unknown illustrated 'zine called Boiled Angel, sat in a Florida Courtroom and listened as a judge destroyed his life and his career.

Four years ago, Diana became the very first American artist in history to be convicted of obscenity for his or her artwork. A local Florida undercover detective, posing as a contributing artist, had enticed Diana into sending him two copies of Boiled Angel. The self-published 'zine had achieved some notoriety for Diana's shocking and graphic depictions of society's most serious problems: child abuse, date rape and the inhumanity and intolerance brought about by the abuse of religion. Boiled Angel wasn't pretty, but it was protected under the laws of the Constitution. ... Or was it?

A Florida jury found Diana guilty of producing obscenity because they agreed his work "lacked serious literary, artistic, political or scientific value" when compared to such works as The Grapes of Wrath or Picasso's Guernica. Diana appealed his conviction all the way up to the United States Supreme Court. Last June, the highest court in the land upheld the decision by the Florida judge. The artist was required to pay a $3,000 fine, undergo psychological testing, have no contact with children under 18 years of age, perform 1,248 hours of community service, enroll in a journalistic ethics course and serve three years of probation. During the course of his probation, Diana's residence can be inspected at any time, without warning or warrant, to determine if he is in possession of, or is creating, "obscene material." In other words, if Diana is caught so much as sketching on a cocktail napkin, he could be thrown in jail.

This is not the first incident of censorship within the comic book industry, but it's certainly the most dramatic. Diana is now living in New York City and, for a time, was ironically serving out his community service by volunteering for the very organization that paid his extensive court costs over the past few years--The Comic Book Legal Defense Fund.

Since 1990, CBLDF has raised more than $200,000 to pay expenses related to defending free speech and freedom of expression in the artistic community. The Fund has helped more than a dozen comic book retailers and professionals fend off the censors--some successfully, some not. "It's funny," says Denis Kitchen, president and founder of both CBLDF and Kitchen Sink Press, "because in the first 15 or 20 years of my existence in underground comix, there were very, very few cases (of censorship). I think it's mostly because (comic books) were literally pretty underground, and they weren't that visible. As comics began to get more popular, people--including local authorities--began to be more aware of them. And the elements of the population that were ... let's just say religious, morally uptight, began to freak out because in their eyes comic books were for kids. Suddenly they saw comic books with sex, drugs, politics, you name it, that were not the comics they grew up with." Today, neary 80 percent of comic books are read by adults--a statistic that doesn't seem to phase the censors.

The Comic Book Legal Defense Fund was officially incorporated as a nonprofit charitable organization in January 1990 as the result of another infamous obscenity trial. Four years previous, a comic book store in Lansing, Ill., called Friendly Frank's was busted for selling "obscene" comics. Christopher Oarr, executive director of the CBLDF explains: "It all started in 1986. A sheriff's deputy was driving through this Chicago suburban community. (He) took an interest in the local Friendly Frank's outlet because of what he later described as 'a lascivious depiction' of a character that turned out to be Wonder Woman. ... Later, undercover agents went in. They went into the adult section, which was clearly marked and segregated as such. And that's when they seized comics." Denis Kitchen, whose Kitchen Sink Press had produced one of the seized books (Omaha the Cat Dancer), got on the phone and began drumming up support for his embattled client.

Almost a decade later, Kitchen remembers gearing up for battle: "We ended up raising between 20 and 30,000 dollars. I then went out and found the best First Amendment attorney in the country, and we ended up getting a guy named Burton Joseph, who was associated with the Playboy Foundation." Joseph successfully overturned the conviction at the appellate level. Kitchen and his troops were inspired by their triumph. "It was a big victory and we were real pleased with ourselves. At that point, (the CBLDF) was a one-man organization, and I had some money left in the bank. And I asked myself a simple question, 'Should I just donate the money to another good cause, or should I actually start an organization that's constantly vigilant because this (sort of legal action) could happen again?' Needless to say, it started happening a lot."

The CBLDF's guiding principle is that "comics should be accorded the same constitutional rights as literature, film or any other form of expression." Quite often, they are not. In 1996, the CBLDF helped win a long-fought battle in California. Comic book writer and artist Paul Mavrides (The Fabulous Furry Freak Brothers) was disputing a 1990 sales tax bill in the amount of $1,400 based on the sales of his artwork. Under California law, unlike novels or movie scripts, comic books did not qualify as "intangible ideas presented in manuscript form," and their creators were subject to the same taxes as producers of raw goods like corn, pencils and matchbook covers. In the wake of a five-year crusade (and more than $75,000 in legal fees), California's Board of Equalization agreed that comics are an expression of ideas and thus should be considered as part of an author's manuscript.

In 1996, the CBLDF successfully defended the rights of Tim Truman and Joe Landsdale in their battle against musicians Johnny and Edgar Winter. In their DC comic Jonah Hex: Riders of the Worm, Truman and Landsdale created two characters called "The Autumn Brothers." The musicians didn't much appreciate the caricature and sued for defamation in civil court. According to Oarr: "In the Tim Truman/Joe Landsdale case, we defended against the charge of slander. We defended the right of cartoonists to engage in satire, which is protected speech." Put simply, the Legal Defense Fund is interested in any case in which an artist's constitutional rights have been trampled. As Oarr says: "The uniting principle in all the cases we undertake is the First Amendment--not censorship exclusively, but the First Amendment."

Since the nationwide publicity in the wake of Mike Diana's case, however, the CBLDF has gained some powerful allies. Well known artists and writers like Frank Miller (Sin City), Dave Sim (Cerebus) and Neil Gaiman (Sandman) regularly contribute to CBLDF's fundraising efforts by donating artwork, comics and autographs for auction at comic book conventions or through the Fund's Web site (www.cbldf.org). Numerous publishers (Frontier Comics, Head Press) have donated profits from some of their comics exclusively to CBLDF. Most recently, Oni Press in Portland released Free Speeches, a graphic novel designed to raise funds and consciousness in the continued fight against censorship in the comic book medium. The book includes orations by Dave Sim, Frank Miller and Neil Gaiman alongside the powerful words of Ms. Nadine Strossen, president of the American Civil Liberties Union. New illustrations for the book were donated by such graphic luminaries as Arthur Adams, Peter Bagge, Jaime Hernandez, Sergio Aragonés, Shannon Wheeler, Evan Dorkin, Bill Sienkiewicz, Will Eisner and many more. Printing companies, comic book distributors and others have waived their normal fees to help this important book reach the public (See "Books," p. 24). Obviously, censorship is of concern to the entire comic book industry.

The industry's concern is hardly surprising. The simple fact is comic books are under the biggest barrage since the 1950s. Following close on the heels of Mike Diana's disappointing case came the end to a similar two-year battle in Oklahoma. Planet Comics of Oklahoma City was the target of a police raid in September 1995. Police were tipped off by a nonprofit obscenity watchdog group called Oklahomans for Children and Families (you may remember them as the group who recently forced police to raid local homes and snatch back rental copies of the "obscene" film The Tin Drum--an Academy Award winner from 1979). Planet Comics' owners, Michael Kennedy and John Hunter, were arrested, carted away in handcuffs and charged with trafficking, keeping for sale and display obscene material deemed to be harmful to adults--the disputed work, a nationally distributed "adults only" comic called Verotika No. 4.

Keep in mind, these comics were not being sold to minors; the owners of Planet Comics were busted for selling "adult" comics to adults. Nevertheless, they were determined to be "dangerous criminals," and their bail was set at $50,000. The Comic Book Legal Defense Fund paid the men's nonrefundable bond. In September of last year, however, the two pled guilty to reduced charges to avoid going to trial. In exchange, they were granted a three-year deferred prison sentence and a fine of $1,500 each. According to Kitchen: "The CBLDF didn't really lose that case. The fellows who were busted just decided to give up because they couldn't handle the aggravation anymore. They also faced prison sentences if they lost. Already, in one case, it cost the guy his marriage; and in the case of both fellows, they lost their business. It took the heart out of them. I mean, here we are saying, 'Look guys, we'll defend you because it's an important principle.' And they're going, 'Our lives are destroyed. We want out.'"

Although the end results of the Mike Diana and the Planet Comics cases are frightening, word seems to be getting out about the Comic Book Legal Defense Fund. Kitchen is confident that "the signal we sent out there to both our industry and to every district attorney who was paying attention was, 'Look, here's an organization that's willing and able to fight. You pick on us and we're not gonna fall over.' That's important, because I tell you, early on these cops and these prosecutors tended to be bullies. They didn't expect a comic shop to fight back."

In the future, perhaps election-minded politicians, conservative judges and uninformed community leaders will think twice about trying to knock down an easy target like today's "funny book" peddlers. "It's unfortunate that we need to continue to exist," concedes Oarr. "But what we find is that we can be much more effective operating quickly, responding quickly and being as proactive as possible in educating people both about the First Amendment and about the reality of the comic book marketplace. Which is much different than it was 20 years ago--or certainly 40, 50 years ago."


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