By James D. McWilliams, Contributing Writer
Updated February 2008
The Supreme Court has clearly protected comic books under the First Amendment since the 1948 case of Winters v. New York, but that ruling has never stopped censors from trying to banish comics to a “kids-only” ghetto where artists and writers have limited freedom.
In fact, a national wave of comic-book censorship struck only six years later, when a 1954 book, Seduction of the Innocent, and related Senate hearings, made the tenuous claim that comics cause juvenile delinquency. A half-century later, freedom of speech is nearly taken for granted in many other media, yet comics suffer a special censorship directly traceable to the anti-comics hysteria of the McCarthy era, says Charles Brownstein, director of the Comic Book Legal Defense Fund.
Today, books and magazines freely print curse words, newspapers print war photos, theaters routinely show R-rated horror movies, and satellite TV and the Internet publish hard-core images of actual sex, but mature content in cartoon form raises public alarms.
In 2000, Texas police arrested bookstore clerk Jesus A. Castillo Jr. and charged him with two counts of misdemeanor obscenity for selling adult comics to a consenting adult who got them from the store’s adult section, where children were not permitted. The specific comics, issues of Demon Beast Invasion: The Fallen, were part of a Japanese horror series that includes graphic sex scenes. (Because Japan and Europe do not stigmatize comics as a children’s medium, they have long produced mainstream comics with more intense violence and sexuality than Americans do.)
Castillo was sentenced to 180 days in jail, a year of probation and a $4,000 fine, after the prosecutor in the case told the jury, “I don’t care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books … are for kids.”
“I can’t imagine a world in which the same argument would have worked for books or for films,” said comics creator Neil Gaiman, in a news release after the verdict in Texas v. Castillo. Gaiman has authored Batman and Supermancomics for young audiences, and the edgy, critically acclaimed Sandman comics for older readers. He is a board member of the Comic Book Legal Defense Fund, a national nonprofit group whose lawyers represented Castillo.
Although the defense fund got a court to throw out one of the charges against Castillo, and prevented him from actually serving jail time, his conviction was upheld on appeal, and the Supreme Court refused in August 2003 to hear Castillo’s case. That refusal possibly allowed stereotypes about comics to set a dangerous free-speech precedent, in a nation where founding father Thomas Jefferson once wrote, “I am really mortified to be told that, in the United States of America … a question about the sale of a book can be carried before the civil magistrate.”
In the late 1990s, the Supreme Court also refused to hear the case of Michael Diana, a cartoonist whom a Florida court forbade to draw explicit images in the privacy of his own home, even if purely for his own viewing. In 1994, a Florida court declared that nihilistic drawings in Diana’s self-published magazineBoiled Angel were obscene, and sentenced him to three years’ probation, a $3,000 fine and more than 1,200 hours of community service. The court also required Diana to attend psychological counseling and journalism-ethics classes, and to have no access to minors.
According to the Comic Book Legal Defense Fund, Diana is “the first and only American artist ever to be convicted of obscenity” for drawings or paintings. Florida’s restriction on Diana’s right to speak through his private drawings has raised concerns among other artists — especially comic-book artists — about their right to creative experimentation. Both Diana’s and Castillo’s cases have also raised concerns among comic-book readers about their right to sample art and literature from outside the cultural mainstream.
Mature literature and rights of adults
Of course, not all comic-book publishers push the envelope to explore mature subjects, and many readers of all ages still buy and enjoy squeaky-clean comics. Archie Comic Publications Inc. still has its internal “Wholesome Family-Oriented Products” standard, which forbids nudity, violence, drinking, smoking, driving without seatbelts and poor dental hygiene — and those restrictions haven’t prevented six decades of children and adults from enjoying the high-school capers of Archie, Jughead, Betty and Veronica. But millions of adult readers — including some who read Archie — also enjoy reading comics that deal with the harsh realities of life. Those readers have a constitutional right to do so.
The Supreme Court ruled in the 1957 case Butler v. Michigan that the law cannot “reduce the adult population … to reading only what is fit for children.” That ruling arguably should apply as much to comic books as it does to Playboyor the erotic Song of Solomon in the Bible. The Butler case overturned a Michigan law that made it a misdemeanor to sell or make available to the general reading public any book containing language “tending to the corruption of the morals of youth.” Rejecting that law, Justice Felix Frankfurter wrote for the Court’s majority, “The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig.”
In the 1997 case of Reno v. American Civil Liberties Union, the Supreme Court likewise overturned a federal law censoring “indecent” content on the Internet. The Court again emphasized that efforts to protect children from offensive expression cannot violate the constitutional rights of adults. The Court held:
“It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. … [R]egardless of the strength of the government’s interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” [Quoting Bolger v. Youngs Drug Products Corp., a case overruling a federal law that prevented unsolicited mailings about contraceptives.]
The general rules in First Amendment jurisprudence are that content-based restrictions on speech are presumptively invalid, and that such restrictions are allowed only when they are both necessary to serve a compelling state interest and are narrowly drawn to achieve that interest. The Supreme Court has discussed those rules in R.A.V. v. City of St. Paul (1992) and Perry Education Association v. Perry Local Educators’ Association (1983). In the 1997 caseEclipse Enterprises v. Gulotta, a federal appeals court used those rules to overturn a Nassau County, N.Y., ordinance that prevented a comic-book company from selling trading cards with images of criminals to minors.
Law professor Nadine Strossen, former president of the American Civil Liberties Union, has expressed offense at the idea that comic books deserve less First Amendment protection than other media. Speaking at the 1996 Comic-Con International convention in San Diego, Strossen said, “All free speech — and all censorship — is indivisible. Any erosion of any expression or idea in any medium endangers every expression and every idea in every medium. … [Further, censorship] diverts attention and resources away from the actual underlying causes of social problems and meaningful steps to redress them.”
Yet the Supreme Court has always ruled that “obscenity” has no constitutional protection and may be censored by governments. The Supreme Court’s definition of “obscenity,” from the 1973 case of Miller v. California, requires that a contested work cannot be judged “obscene,” and cannot thereby lose constitutional protection, unless the work has the following characteristics:
The first two prongs of that test are judged by contemporary community standards where an offense occurs, while the final prong — serious societal value — is judged by a contemporary national standard. In Pope v. Illinois(1987) the Supreme Court held that trial courts cannot use community standards to decide whether a work has literary, artistic, political or scientific value, because “the value of a work does not vary from community to community.”
In cases in which sellers or distributors of obscenity are prosecuted, prosecutors must not only show that a work is obscene, but must also show that the seller or distributor was personally aware of the sexually explicit “character” of the offensive item (Smith v. California, 1959). However, the seller or distributor does not have to be aware the item is legally obscene (Hamling v. United States,1974).
Under Supreme Court precedent, even pornographic works that have serious artistic, literary, political or scientific value are not obscene, and are protected by the Constitution. Major reasons the Comic Book Legal Defense Fund objects to the Castillo verdict are that the prosecutor never offered witnesses to rebut expert testimony that the comic at issue had serious value, and that the judge failed to instruct the jury that such value should be judged by a national standard, says fund attorney Burton Joseph.
Joseph points out that the Supreme Court ruled in the 2000 case United States v. Playboy Entertainment Group that “moral judgments about art and literature … are for the individual to make, not for the government to decree, even with the mandate or approval of a majority.” That case overturned a federal law that had forced adult-only channels to stop broadcasting on many cable-television systems during daytime, even if parents could easily block the channels from their homes. Confronting the argument that erotic speech is “not very important,” Justice Anthony Kennedy wrote for the Court, “The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.” Thus, although that Playboyruling did not deal with obscenity, but dealt with a legal form of erotica called “indecency” (discussed later in this article), the Playboy ruling supported the idea that “shabby, offensive, [and] even ugly” speech of a sexually explicit nature can have serious value under the Constitution. Joseph argues that the comic Demon Beast Invasion has such value.
During the Castillo case, Susan Napier, an expert on Asian literature at the University of Texas at Austin, testified that Japanese culture is fascinated by bizarre creatures, metamorphoses and the apocalypse, and that Demon Beast Invasion deals with these topics in “beautifully drawn” scenes of suspense and romance. Thus, Napier testified, the comic had artistic value, literary value, and — because of its treatment of the desire for power — even political value.
But the Texas Court of Appeals ruled that jury members assessing the book’s value could weigh such testimony against the opinion of a police detective that the book was obscene “because of the sexual content it depicted.” (Emphasis added). Because Supreme Court precedents require a jury to make separatefindings on the sexual nature of artwork and on the work’s value, that Texas ruling may have directly contradicted the First Amendment. Further, the police officer had no expertise in national artistic standards, says Joseph. But the Texas court ruled that allowing the detective to testify as he did was, at worst, a “harmless” error, because Castillo’s objections to the testimony were insufficient.
During the case’s appeal, a dissenting judge argued that the prosecutor presented insufficient evidence that Castillo was aware of the sexually explicit nature of Demon Beast Invasion, and that he should have been acquitted on that basis. Yet the Supreme Court was too busy to hear Castillo’s case, says Joseph.
The Court was also too busy to hear Michael Diana’s case about his right to draw adult images in his own home. Diana has argued that his grotesque drawings of maimed adults and children in Boiled Angel did not appeal to a prurient interest in sex, were instead intended to comment on societal tragedies such as child abuse, and thus should not be considered obscene. Joseph compares Diana’s work to that of the 18th-century Spanish painter Francisco de Goya, who protested war and injustice with violent, bloody images. Some of Goya’s most famous works are of peasants being shot by invaders and of the Greek titan Saturn devouring his son. Goya also created classic nudes, and was called before the Inquisition to explain one of them, The Naked Maja.
Even if we assume that Boiled Angel was obscene, the Supreme Court ruled in the 1969 case of Stanley v. Georgia that states cannot punish citizens for the mere possession of obscenity in the privacy of their own homes. (The Supreme Court has not, thus far, recognized any right to distribute obscenity that would get it into a person’s home in the first place, unless that person created the obscenity himself.) Further, the Supreme Court traditionally avoids letting states restrain citizens’ freedom of expression before they get a chance to express themselves, because of the chance that citizens will be deterred from constitutionally protected speech. So, many free-speech advocates consider Diana’s punishment a wrongful infringement of his rights and the rights of his potential readers.
The right to be entertained
Although the Supreme Court’s aforementioned Winters ruling never actually used the term “comic book,” the ruling overturned the obscenity conviction of a book dealer arrested for selling Headquarters Detective, True Cases from the Police Blotter, a magazine that combined comics, photographs and stories about supposedly true crimes. The book dealer had allegedly violated a New York law banning the printing, sale and distribution of magazines “principally made up of … stories of deeds of bloodshed, lust or crime,” but the Supreme Court ruled that the law was unconstitutionally vague. The Court also held:
“We do not accede to [state officials’] suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.”
Although the Court found no possible social value in the specific crime comics at issue, it ruled that the comics “are as much entitled to the protection of free speech as the best of literature.” In Miller‘s modern terminology, even totally valueless entertainment is constitutionally protected if it is not both patently offensive and prurient.
Nonetheless, vague anti-comics laws remain on the books in a few locales. In Connecticut, a statute declares that a person is guilty of the misdemeanor of disseminating “indecent comic books” when he or she publishes or distributes for resale comics that are primarily devoted to “horror or terror.” Another Connecticut law, still on the books as an obscenity statute, declares that comic-book publishers must print their names and addresses in all their comics. A California law makes it a misdemeanor for magazine distributors to require a bookstore to purchase a “horror comic book” as a condition for the sale or consignment of other magazines or publications. That misdemeanor is punishable by six months in jail, a fine of up to $1,000, or both.
A short history of anti-comics laws
The law the Supreme Court overturned in Winters had been passed in 1884, when newspaper comics, the predecessor of modern comic books, were in their infancy. The law was designed to censor the tabloid newspapers and dime novels of the late Victorian era. Critics of that era’s sensational news coverage would later call it “yellow journalism,” naming it after a popular comic-strip of the 1890s, The Yellow Kid. Originally, the law kept violent books and tabloids only from minors, but in 1887, New York amended the law to keep violent material from adults too. Twenty-two other states had passed similar laws by 1913, some keeping violent books only from children, and others keeping them from both children and adults.
Such laws clashed with popular tastes when World War II created a large market of soldiers and sailors who enjoyed reading violent, racy comics between battles or other duties. The U.S. military appealed to those tastes by creating its own adult cartoons for servicemen. Yes, the federal government sponsored, co-produced and distributed adult, animated cartoons: training films, war-bond advertisements and other propaganda including topless women, sexual references, repeated swearing, violence and stereotypes of Japanese, Germans and blacks. In fact, the military’s “Private Snafu” series of training films included a character whose very name was an acronym for vulgarity. (Service members often use the term “SNAFU” to mean “Situation Normal: All F—ed Up.”) Additionally, some of the cartoons contained hidden phallic imagery, according to commentators on the DVD collection “Cartoons for Victory!”
Ironically, a decade later, cartoons milder than the ones that the government itself produced would be banned in many U.S. cities. But during World War II itself, indecent imagery was drafted into public service. And, interestingly enough, that service helped prevent the cartoons from being obscene, by modern legal standards, because the cartoons clearly had political value — and often had strong artistic value too.
But getting back to the 1940s: In 1944, comic books were a quarter of all magazines shipped to servicemen abroad. During the post-war years, publishers and adult readers popularized gory science fiction and horror comics as an unconscious attempt to come to terms with the horrors of Auschwitz and Hiroshima, according to Pulitzer Prize-winning cartoonist Art Spiegelman.
Former EC Comics editor and artist Al Feldstein agrees partly with Spiegelman’s theory. He created EC’s horror titles (including Tales From the Crypt) and edited Mad magazine, which both applied grim humor to frightening situations. “After the atomic bomb was created, we were all faced with instant annihilation,” says Feldstein. “Kids were forced to play ‘duck and cover’ under their school desks … . ‘Spy vs. Spy’ in Mad was a humorous delineation of that: each spy wiping the other out with a bomb or something.”
The post-World War II, Cold War era helped make adult-themed comics a major business, with industry sales estimated at as much as $90 million per year.
Although the comics industry continued to produce “funny animal” and superhero comics for youngsters, it also produced comics for older readers. EC Comics Publisher William M. Gaines published some of the most notable mature comics of the era. “Gaines’s line of science-fiction, horror, and war comics is generally considered the best mass-marketed comic-book line ever produced,” wrote comics publisher Gary G. Groth in a 1988 article on the history of “grown-up” comics. However, adult-themed comics from Gaines and other publishers created a firestorm of controversy among censors.
Legislators in many locales ignored the part of the Supreme Court’s Wintersruling entitling comics to as much free-speech protection “as the best of literature,” and those legislators instead tried to cure the unconstitutional vagueness in their censorship by pushing for explicit laws regulating comic-book content.
In 1954, the Senate Judiciary Committee’s Subcommittee to Investigate Juvenile Delinquency began an investigation of the comic-book industry, and eventually asserted that comic books were a major cause of delinquency. That assertion was based largely on the Senate testimony of child psychiatrist Fredric Wertham, who asserted that all comic books were harmful to children.
Decades later, Wertham would recant that assertion by reporting that comic-book readers often grow up to be normal, well-adjusted adults. He would even write a 1973 book, The World of Fanzines, glorifying the community spirit of the comics-fan subculture. But during the 1950s, Wertham’s most popular book about comics was one called Seduction of the Innocent, which made wild accusations about comic books and their impact.
Wertham’s most infamous, oft-repeated allegations in Seduction of the Innocent were that the adventures of Batman and Robin were a homosexual fantasy involving a minor, that Superman was a poster-boy for Nazism (in spite of the fact the character was created by two Jews), that Wonder Woman was a lesbian sadist, and that pictures of genitalia were frequently hidden in comic-book images. Wertham closed his book with an appeal to parents of juvenile delinquents to blame comic books, not poor parenting, for their children’s failings.
“While it was relatively easy to discern a connection between the threatening culture that crime comics represented, and the perceived increase in juvenile delinquency at the end of the war, the willingness to believe in such a relationship was essentially opportunistic,” writes history researcher Jonathan Swainger in a journal article on comics censorship in Canada. “Targeting crime comics was far more palatable as an explanation for juvenile delinquency, than was the possibility that a generation of … youths did not subscribe to the homestead ideals of the 1930s.”
Spider-Man creator Stan Lee recalls in his 2002 autobiography, Excelsior!, that he had frequent debates with Wertham. “He once claimed he did a survey that demonstrated that most of the kids in reform schools were comicbook readers,” says Lee. “So I said to him, ‘If you do another survey, you’ll find that most of the kids who drink milk are comicbook readers. Should we ban milk?’ His arguments were patently sophistic, and there I’m being charitable, but he was a psychiatrist, so people listened.”
Other scientists and crime experts flatly disagreed with Wertham. Strossen points out that a leading authority on adolescent psychology said in 1954 that blaming juvenile delinquency on comics was both “unfortunate” and “without adequate evidence.” Strossen also notes that the superintendent of one juvenile court wrote in the same year, “We have never had a case in which reading crime comic books seemed to be a motivating factor in … delinquency.”
In fact, Wertham apparently overlooked evidence that youth crime was dropping in postwar America, perhaps owing to increased parental supervision as fathers returned from combat and mothers from munitions factories. Further, Wertham’s anti-comics campaign overlooked the positive aspects of comic books. Later, feminist leader Gloria Steinem would praise Mad comics for offering readers satire they could find nowhere else in the 1950s, and Steinem would consider Wonder Woman to be such a positive role model for young women that Steinem would place the superheroine on the cover of the first issue of Ms. magazine. Maryland judges would even rule that exposure to adult themes and issues through comics might help prepare youngsters to deal with real-world problems as adults.
“The right of young persons to read what they will, within the limits of permissible State or Federal action, is vital not only to them but to all our citizenry,” ruled the Maryland judges, overturning an anti-comics law in the 1960 case Police Comm’r of Baltimore City v. Siegel Enterprises, Inc. That law had made it a crime for stores merely to make “crime comics” visible from a public street.
But in the wake of accusations from Wertham and the Senate subcommittee, an outraged public subjected comics to book burnings. Although the Senate report discouraged anti-comics laws in favor of industry self-regulation, several states quickly passed anti-comics laws. The state of Washington passed a 1955 law making it a crime to sell comic books without a license. (Three years later, the Washington Supreme Court ruled this law was unconstitutional in Adams v. Hinkle.) Los Angeles County passed an ordinance criminalizing the sale of “crime comic books” (any comics depicting a crime) to anyone younger than 18 (also overturned, in Katzev v. Los Angeles.) New York state, which had seen theWinters ruling strike down a vague censorship law, passed a more specific law criminalizing the sale of any comic book with certain words in the title or “devoted to or principally made up of pictures or accounts of methods of crime, of illicit sex, horror, terror, physical torture, brutality or physical violence.” Although, a few years later, such laws were found unconstitutional, sales of comic books plummeted nationwide, as bookstores refused to carry comics that might become the subject of criminal prosecutions.
Many comic-book publishers went broke and vanished overnight, according to EC Comics’ Feldstein. Although he concedes that some of the horror and crime comics of the 1950s may have been inappropriate for small children, he expresses anger at efforts to bankrupt companies that sold such comics to consenting adults and older teenagers.
Comics Code: ‘self-censorship’ of political dissent
To prevent an industry collapse, comic-book publishers developed the ostensibly self-censoring Comics Code of America, a strict censorship code that not only restricted violent and racy images but also specifically prevented negative portrayals of government officials, police and authority figures. Although courts traditionally give books a high degree of First Amendment protection, and although the First Amendment protects everyone’s right to criticize the government and to discuss public concerns, the Comics Code prevented cartoonists from using mainstream comic books to express political dissent.
Brownstein, director of the Comic Book Legal Defense Fund, says such 1950s censorship is directly responsible for the still-widespread attitude that comics are only for children and do not deserve the constitutional protections of more “serious” media. The Comics Code’s political restrictions struck at a time when the civil rights movement, the feminist movement, the anti-war movement and other political upheavals of the baby-boom era were about to make political dissent the focus of American culture.
Before the code, Gaines’ EC Comics had published politically volatile stories in a comic called Frontline Combat that raised concerns about America’s involvement in the Korean War. “We questioned the values of the war, the accomplishments of the war,” says Feldstein. “We portrayed the enemy as human beings, with their own problems.” One poignant cover of Frontline Combat showed a crying baby left alone on a battlefield.
EC’s crime comics dealt with the topic of corrupt public officials, at a time when Feldstein says many such officials wanted to “muzzle the press.”
“There was the whole McCarthy, anti-communist agenda, the Cold War agenda,” says Feldstein. “They wanted to cut dissent. … [Censoring comics] was a good first step. They figured if they could censor the print media for children, they could do it for adults as well.”
During the Senate hearings on juvenile delinquency, EC Comics Publisher Gaines pointed out that violence similar to what appeared in comics was in truthful news reports about crime. He testified, “[Y]ou are only a step away from banning crimes in the newspapers. … Once you start to censor you must censor everything. You must censor comic books, radio, television, and newspapers.”
As the civil rights movement and other dissident movements launched America into a political maelstrom, the Comics Code Authority arbitrarily enforced a few unwritten rules, based on the personal politics of the Code Authority’s leadership, according to Feldstein. He claims that the code’s chief censor, former New York judge Charles Murphy, had a specific agenda to put EC Comics out of business.
The Comics Code seal could not be placed on any EC comic until it was personally edited by Murphy, says Feldstein. He says that Murphy refused to allow EC to publish a story that placed an African-American astronaut in an allegorical story about race relations.
“There was a planet with blue and orange robots who were intolerant of each other, and this astronaut visited them to check to see if they were worthy to join a galactic democratic government,” says Feldstein. The astronaut’s face was hidden under a space helmet until the end of the story, when he decided that the robots’ prejudice made them inferior, and when he also revealed that he was black.
When Murphy would not allow the astronaut to be a black man, EC threatened to hold a press conference declaring the Comics Code Authority to be racist, says Feldstein. Murphy backed down, allowing the character to be black, but then raised an accusation that showing the astronaut with sweat on his brow was racist. EC then decided to end its affiliation with the Comics Code Authority.
Fellow comics pioneer Stan Lee has no recollections in his autobiography of Murphy’s being racist or partisan, and Lee reports that Murphy did “a good job.” Lee says, “Most of the changes [Murphy imposed on comics] seemed foolish and unnecessary to us, but they were easy to make and never bothered us that much. At least we were back in business again.”
But Feldstein says Lee probably had fewer confrontations with Murphy because Lee’s 1950s work dealt less bluntly with controversial subjects and did not pursue adult audiences as vigorously as EC did. Lee is more known for gradually addressing mature topics during the 1960s and ’70s. Comics Code rules were specifically drafted to gut sales of EC’s popular horror and crime comics, says Feldstein. The code explicitly banned all stories about werewolves, vampires, zombies or triumphant villains, and banned comics that had the words “horror,” “terror” or “crime” in their titles. The titles of some of EC’s best-selling comics were Crypt of Terror (renamed Tales From the Crypt), Vault of Horror and Crime SuspenStories. Feldstein claims that some other large publishers, specifically Archie Comics and DC Comics (publisher of Superman) supported the anti-EC campaign because they were offended by parodies EC had done of their characters in Mad.
Eventually, EC canceled its horror titles to publish medical dramas and other innocuous fare, but owners of bookstores and newsstands were afraid to sell even those EC comics, because their covers did not bear the Comics Code seal of approval, says Feldstein. EC kept losing money until Mad was EC’s only surviving comic.
Mad managed to continue publishing adult satire by taking advantage of a loophole in anti-comic laws. Those laws specifically exempted any periodical with the page size of a traditional glossy magazine, rather than the smaller size that comics usually have. Ironically, Mad is now owned by the same company that owns DC Comics, AOL Time Warner.
Carmine Infantino, who was an artist at DC Comics during the Wertham years and who later became DC’s president, said in a 2001 television interview that his company had little choice but to support the Comics Code. In that interview on the First Amendment Center’s TV program, “Speaking Freely,” Infantino said, “[T]he people who was distributing books got very nervous, and they started swinging comic books back at us. And we were getting returns up to 90, 95 percent. So we got desperate. While I’m not a fan of censorship, I can understand what happened at the time and why they needed a code at that period of history.”
Comics Code: unconstitutional?
In the 1963 case Bantam Books, Inc. v. Sullivan, the Supreme Court overturned a state law that created the Rhode Island Commission to Encourage Morality in Youth, a group that screened novels and comics for objectionable material and then sent police and retailers warnings about such material, often followed by prosecutions if the retailers continued selling it. Although state officials said the commission itself had no law-enforcement power and merely gave advice, the Court found that the commission practiced informal censorship, successfully using intimidation to unconstitutionally restrain retailers from circulating material that had not been judicially determined to be obscene. Writing for the Court majority, Justice William Brennan ruled:
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. … We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint. Kingsley Books, Inc., v. Brown, 354 U.S. 436. The system at bar includes no such saving features. On the contrary, its capacity for suppression of constitutionally protected publications is far in excess of that of the typical licensing scheme held constitutionally invalid by this Court.”
Critics of the Comics Code Authority might argue that it operated similar to the unconstitutional commission in Bantam Books.
But supporters of the Comics Code might reasonably argue that it was not unconstitutional because the code appeared to be a voluntary form of self-regulation by publishers who joined the Comics Code Authority. Under court precedents, any free-speech restriction created and enforced by private parties is usually constitutional, unless it involves “state action.” But some legal scholars believe that a disguised form of state action exists whenever any “self-regulation” directly results from government censorship or threats of government censorship. That view is explored in a 1999 journal article on Internet regulation by Solveig Singleton, director of information studies at the Cato Institute. Singleton finds support for the view that self-censorship is often state censorship in a 1963 civil-rights case, Lombard v. Louisiana. In that case, the Supreme Court treated private discrimination by restaurant owners as if it were state segregation, when New Orleans’ mayor and police issued racist threats against restaurant integration.
Although the Supreme Court has frequently found that varying levels of state involvement in private conduct do not make that conduct “state action” or subject to the Constitution, the Comics Code may parallel state actions in several respects.
Censorship threats from government officials, and actual censorship in several states, may have coerced publishers to adopt the Comics Code, as racist threats from Louisiana officials coerced private discrimination in Lombard. The fact that some Comics Code provisions and New York laws mirrored each other, and the fact that some police and prosecutors apparently relied on the Comics Code seal when deciding which comics might be illegal, might have given the code the color of law.
If the power to monopolize regulation of an entire medium of communication is viewed as a power “exclusively reserved to the State,” then the monopoly power of the Comics Code over 1950s comic-book publishers and distributors may be the equivalent of company-owned towns ejecting unpopular speakers, which was found unconstitutional in the 1946 case Marsh v. Alabama. Finally, if the Comics Code truly was a delegation of government power, and if the Comics Code Authority used that power to enforce political and racial discrimination, as Feldstein says, then that discrimination may have been unconstitutional under a variety of precedents.
Assuming that the Comics Code Authority acted under delegated government authority, the code may have been unconstitutional for a further reason. Unlike the current self-censoring rating systems for the movie, television and video-game industries, the Comics Code made no effort to distinguish content that was appropriate for some age groups but inappropriate for others, as when movie ratings distinguish a PG-rated film from a PG-13 or R-rated film. For decades, the Comics Code banned all content that didn’t meet stringent guidelines. Essentially, all comics that weren’t “Rated G” or “PG” were automatically banned, even if they were intended for, and mostly read by, adults and older teenagers. The Supreme Court ruled that similar treatment of films was unconstitutionally vague in the 1968 case of Interstate Circuit v. Dallas,which struck down a law requiring special licenses to show films “not suitable for young persons” under 16.
Censorship that promotes the ‘inane,’ pornographic
Writing for the Court, Justice Thurgood Marshall condemned pressuring entertainers to produce “nothing but the innocuous” as their only alternative to producing explicitly “adult” entertainment. Marshall predicted that such pressure would encourage distribution of “totally inane” entertainment instead of entertainment that appealed to both young people and adults. In discussing such issues, Marshall cited with approval a 1959 California Supreme Court decision, Katzev v. County of Los Angeles, that overruled a law criminalizing sales of “crime comic books” to anyone under 18.
Many critics say the Comics Code did, in fact, lead to many “totally inane” comics, such as the gleefully mindless capers lampooned on the 1960s TV program “Batman,” which starred Adam West. The Comics Code is often accused of ending the “Golden Age” of comic books.
The Comics Code and state censorship of comics not only made them sillier and less lucrative, but may have also encouraged serious artists to join the pornography industry to gain greater artistic freedom and better incomes. As the Comics Code gutted sales of EC Comics, several of EC’s top artists left to work for Hugh Hefner and his Playboy magazine. Former EC artists Harvey Kurtzman and Will Elder created Playboy‘s “Little Annie Fanny,” a cartoon full of soft-core nudity and sexual double entendres, but also full of political and social commentary that the Comics Code would not allow.
Another way comic-book censorship has backfired is by drawing publicity to allegedly obscene works that were previously seen by few people, says comics-defense lawyer Joseph. Before Florida officials decided to censor Diana’s Boiled Angel comic, it circulated among only a few dozen people, but now thousands of comic-book readers have taken interest in Diana’s work and have supported fund-raising events to help protect it, Joseph says.
Ratings, labels, gradual respect
Today, the largest comic-book publishers sell separate lines of comics to very young readers, adolescents and adults. For instance, DC Comics, publisher ofSuperman, has published the Vertigo line of comics, labeled “Suggested for Mature Readers,” since 1993. More recently, Marvel Comics, publisher ofSpider-Man, has started printing ratings on the covers of its comics. Traditional superhero comics usually get the equivalent of “PG” or “PG-13″ ratings, while Marvel’s adult comics get the so-called “MAX” rating and the prominent label “PARENTAL ADVISORY: EXPLICIT CONTENT.” Those adult comics, sold in comics-specialty stores, contain graphic violence, profanity and occasional drawings of bare buttocks or breasts, but nothing more explicit than what appears in many R-rated movies.
“[T]o avoid confusion, the MAX titles will be designed to look very different from our mainline Marvel books,” says Marvel’s Web site. “They will not carry a Marvel logo on their covers, they will not be sold on the newsstand, and they will not be marketed to young readers.”
The issue of whether to label explicit content has sometimes been contentious in the comics industry, because labels have the upside of helping parents decide what reading is appropriate for their children, and labels have the downside of sometimes drawing censors who want to keep non-obscene material from adults.
In 1983, the publishers of the sword-and-sorcery comic Elfquest drew the wrath of many parents by not printing warning labels on an issue that showed soldiers and their lovers relaxing before combat by having an orgy. (There was no graphic nudity in this scene — no exposed genitals or nipples — but there did appear to be adultery.) On the other hand, in the case of Texas v. Castillo,prosecutors and judges used warning labels against a bookstore clerk as evidence that he knew that contested comics were obscene — although a dissenting judge pointed out that the warning labels could have indicated either sexual or violent content. Nonetheless, labeling seems to be the predominant method that comic-book publishers use for helping the public differentiate between titles marketed to children, teenagers and adults. Meanwhile, the publishers of Elfquest, Wendy and Richard Pini, have said in a 1998 book,Elfquest: The First 20 Years, that they work to portray sex more responsibly now that AIDS is a major concern, although the publishers maintain that sensitive portrayals of sexuality, screened by parents, can be appropriate for readers of any age.
Some comic-book publishers cater exclusively to older audiences, and their right to do so has been held constitutional. In the 1989 case of Illinois v. Correa,an Illinois appeals court overturned the obscenity conviction of bookstore manager Michael Correa, who sold erotic comic books to an adult at the Friendly Frank comic shop in Lansing, Ill. The court judged the comic books by the same constitutional standards applied to other literature, and essentially found that sexual content that would not be obscene in another medium does not magically become obscene merely because it is in cartoon form.
Applying Supreme Court precedents to adult comics, the state appeals court inCorrea ruled:
“After reviewing each of the seven cartoon books at issue, we cannot say that they constitute hard-core obscenity. Omaha the Cat Dancer, Numbers 1, 2 and 3, are in the nature of a soap opera, with primary and secondary plots that continue in each subsequent issue. We find that the depicted nudity and sexual conduct of the cartoon characters (animals with human attributes) are part of a subplot incidental to the main storyline. The Bodyssey is a square-bound cartoon comic book with at least 52 pages, containing a complete story in the nature of a paperback novel. Again, the nudity and sexual conduct depicted in the book are subsidiary to a discernible plot. In terms of the statute, we cannot say that each of these comic books, taken as a whole, lacks serious literary or artistic value.”
The court ruled that some other comic books at issue in the case were “in incredibly poor taste” but “not patently offensive.”
In 1970, a state court used an earlier variation of the modern, three-part test for obscenity to condemn the comic Zap No. 4 in the case of New York v. Kirkpatrick. The comic at issue included sexually explicit drawings by underground cartoonists Robert Crumb, S. Clay Wilson, Robert Williams and Gilbert Shelton. The court ruled that nudity and sexual content alone are not automatically obscene, but that without clearly redeeming social value the book’s graphic portrayals of incest, masturbation, sodomy, bestiality and the murder of a woman during sexual bondage were “unredeemable … filth for filth’s sake.”
Now, more than 30 years after the Kirkpatrick case, Zap No. 4 has been sold in New York City with no criminal repercussions, according to David Jay Gabriel, executive director of the New York City Comic Book Museum. The artists behind the comic have claimed that it critiques serious sexual and cultural issues, and much of the national reading public has apparently rendered a de facto verdict that Zap No. 4 and similar books — although often gruesome — do have serious value in debates on those issues. That de facto verdict has come in the form of exhibits at the Museum of Modern Art displaying the work of Zap No. 4 artists, the heaping of critical acclaim on a 1990s movie biography of Robert Crumb, and the open buying and selling of hardcover editions of “underground comix” at major bookstores like Borders and Barnes & Noble nationwide. Perhaps some contemporary readers have taken note of the fact that many sexual images that drew the wrath of public officials generations ago are now considered classic art: for instance, Michelangelo’s nudes in the Sistine Chapel and Rembrandt’s frank drawings of himself having sex with his wife and of her urinating outdoors.
‘Indecency’: not banned, but regulated
Explicit sexual material that does not rise to the level of obscenity cannot be legally banned, but if such material can be legally defined as “indecency,” its sale or distribution may be regulated. The legal definition of “indecency” is “language (or an image) that describes, in terms patently offensive as measured by contemporary community standards … sexual or excretory activities and organs … when there is a reasonable risk that children may be in the audience,” according to the Supreme Court in FCC v. Pacifica Foundation (1978). States can create regulations to restrict children’s access to indecent material, if those restrictions do not burden adults’ access. For instance, states may require that sexually indecent comics be placed on high shelves in stores, whenever similarly indecent magazines or videos must be placed there.
The Court noted in Pacifica that merely indecent material cannot be banned from bookstores, although the case dealt specifically with indecency restrictions in radio and TV broadcasts.
Nonetheless, community standards in some locales could make sexually explicit comics vulnerable to prosecution under either obscenity or indecency laws. Whether obscenity prosecutions would lead to legitimate convictions might depend on defendants’ proving to a judge or jury that a specific comic has serious literary, artistic, political or scientific value. Prurient, patently offensive comics that have such value are not obscene, but are merely indecent, and are constitutionally protected unless they contain child pornography.
‘Child porn’ that isn’t
Child pornography, meaning sexually explicit images of actual minors, is not constitutionally protected. However, the Supreme Court ruled in the 2002 case of Ashcroft v. Free Speech Coalition that sexual images that only appear to be of minors, but that are not, are protected. Such protected images include images of youthful adults and realistic, digital images of minors who have never existed in the real world. Thus, explicit cartoons about promiscuous adolescents are not illegal child porn, unless some actual, under-age person is a model for the cartoon images.
Before the Free Speech Coalition ruling, cartoonist Larry Welz had to take pains to emphasize that the title character of his explicit Archie parody, Cherry, was at least 18 years old; otherwise, his publisher feared prosecution. In comics historian Patrick Rosenkranz’s book Rebel Visions: The Underground Comix Revolution 1963-1975, Welz is quoted describing child pornography as a “hideous crime” and saying that anyone perpetrating it “should be shot in the head immediately,” but Welz argues that banning all fictional portrayals of teen sex is a form of “mind control.”
According to the Comic Book Legal Defense Fund, Florida officials filed criminal charges against two stores in the 1990s for selling Cherry comics, but those officials later dropped the charges. Welz recently created a Comic Book Legal Defense Fund T-shirt that portrays Cherry dressed as the Statue of Liberty, with the slogan “Fight Censorship.”
The war on drug comics
Even when mature comics have not contained obscenity, indecency or potential child pornography, they have sometimes encountered government censorship.
When the “underground comix” movement of the 1960s and ’70s made adult comics more popular, public officials clamped down on controversial, but non-obscene, comics indirectly by prosecuting counterculture hangouts for drug-related offenses, says Rosenkranz in Rebel Visions. Such hangouts often sold both underground comics and items that police considered to be drug paraphernalia.
Gilbert Shelton, creator of the drug-culture comedy Fabulous Furry Freak Brothers, says in Rosenkranz’s book, “[Counterculture stores] were forced to choose between selling cigarette papers and pipes and the Freak Brotherscomics. … They couldn’t sell both in the same store because the police would testify that the Freak Brothers comics were an instructional manual on how to use papers and pipes to smoke marijuana and not tobacco. If the storeowner didn’t have those comic books in the store, he could legitimately say he was selling those papers and pipes to smoke tobacco in.”
Comics as a serious artform
In the book Understanding Comics, comics historian and apologist Scott McCloud painstakingly debunks the stereotype that comics deal only with children’s stories about superheroes and funny animals. McCloud writes, “The artform — the medium — known as comics is a vessel which can hold any number of ideas and images. The ‘content’ of those images and ideas is, of course, up to creators, and we all have different tastes. The trick is to never mistake the message for the messenger.”
In the post-Winters, post-Miller, post-Free Speech Coalition world, comics should logically have the same First Amendment protection as all other books. But some censors may believe comics can be judged by a lower constitutional standard than other art or literature because those censors assume that comics automatically lack the “serious” literary, artistic, political or scientific value required under the last prong of the Supreme Court’s obscenity test. Yet comics very often do have such serious merit. Consider:
This article will now explore the history and influences of comic books and why, as an artform, comics have serious value that deserves First Amendment protection.
Comics as a historic artform
Comics are essentially pictures that tell stories. Long before the invention of written language, cavemen in southwest France drew such pictures on cave walls, to tell the adventures of successful hunters and to conjure magic for further hunts. At the dawn of civilization, the pharaohs in Egypt filled monuments and tombs with panels of hieroglyphics about the rise of kingdoms and the daily lives of ancient people. During the 11th century, after William the Conqueror defeated the English King Harold, William’s half-brother sponsored the recording of the story of the battle on a picture-filled tapestry, with 79 scenes of action, drama and text. At about the same time, Mexican Indians preserved the story of one of their own conquering warriors on a 36-foot long screen depicting numerous scenes from his life.
The Renaissance artist Michelangelo told Bible stories through a series of sequential and thematic paintings in the Sistine Chapel. Paul Revere’s famous engraving of the Boston Massacre helped spur the American colonists to launch the Revolutionary War and gain independence.
So, for millennia, art employing the techniques of what we now call “comics” has been an important medium for preserving history, promoting cultural values, and encouraging vital social change. Aware of that heritage, many “comic” creators now refer to their creations as “sequential art” or “graphic novels.”
Comics as a medium for adults
Comics are a form of literature, and they have never been just for children. In 1938, the year Superman debuted in Action Comics No. 1, a Gallup poll showed that about 70% of American adults faithfully read newspaper cartoons. Today, almost 70% of comic-book readers are more than 18 years old, according to the comics historian McCloud. That statistic has been the case throughout recent decades. Although copies of the first Superman comic, Action Comics No. 1,originally sold for only a dime, adult collectors of comics have valued a first edition of that comic at $350,000.
Although most historians agree that the first American “comic book” (as the term is usually defined) was probably the kids-friendly Famous Funnies of February 1934, underground publishers may have printed adults-only comics in America a decade or more earlier. To avoid U.S. censorship, those comics sometimes bore labels stating that they had been published in foreign locales, and perhaps for that reason the adults-only comics gained the nickname “Tijuana Bibles.” Pulitzer Prize-winner Spiegelman is among scholars who believe that Tijuana Bibles were the first American comic books to contain original material. The 1934 Famous Funnies reprinted old newspaper comics. Tijuana Bibles contained parodies of those comic strips, sex fantasies about celebrities of the 1920s and later, and other racy content.
Because of their sexual content, these comics were automatically considered illegal by authorities, although some Tijuana Bibles were tame by modern standards. As Spiegelman and comics historian Bob Adelman have observed, those adult comics tended not to have the rape, sadism or explicit misogyny of much modern pornography, although the same casual promiscuity and ethnic stereotypes were in them. Yet, in the book Tijuana Bibles: Art and Wit in America’s Forbidden Funnies, 1930s-1950s, those authors point out that Tijuana Bibles played a useful role as sex-education manuals in the early 20th century, illustrating sex positions, alerting men about menstruation (although portraying it negatively), and discouraging male hang-ups about performing oral sex on women. Tijuana Bibles also dealt with some of the dangers of illicit sex — crabs, rape accusations, jealous spouses — and one of the comics was even devoted to dispelling a vicious, once-popular myth that Asian women have deformed sex organs.
Nonetheless, the Federal Bureau of Investigation spied on people suspected of producing or distributing Tijuana Bibles, and anyone caught doing so went to jail.
Comics as part of national culture
For generations, comic books have had an enormous impact on American pop culture. Few people today remember that the slang expressions “wimp” and “goon” originated in the old “Popeye” comic strips, which featured characters named J. Wellington Wimpy and Alice the Goon. (The Goons were a tribe of gigantic, primitive, island dwellers.) The newspaper comic “Peanuts,” by Charles Schulz, helped popularize the phrase “Good grief!” as an expression of angst. Robert Crumb’s comics popularized the expression “Keep on truckin’!” during the 1970s. Superman has contributed numerous catch phrases to the national lexicon, from “faster than a speeding bullet” to “truth, justice and the American way.”
Comics have also contributed to American culture by providing characters and stories for other media — successful television and radio shows, videogames, and movies, which together have grossed billions of dollars in revenue. Hit movies obviously based on comics include “Superman,” “Batman,” “Spider-Man,” “X-Men,” “Daredevil,” “The Hulk,” “Teenage Mutant Ninja Turtles” and “Annie.” Other hit films that were not-so-obviously based on comic books were “Road to Perdition” (a gangster film starring Tom Hanks), “From Hell,” “Blade” and “Men in Black.” All of those films had large numbers of teen and adult audience members, and several of the films were intended primarily for adults.
Comics have not only contributed largely to American culture, but they have also reflected American culture and subcultures. In the 2001 Pulitzer Prize-winning novel, The Amazing Adventures of Kavalier & Clay, author Michael Chabon fictionalizes the early history of comic-book publishing and traces the origins of superheroes to Jewish folklore. Many comic-book pioneers, includingSuperman creators Jerry Siegel and Joe Shuster, Spider-Man creator Lee andTales From the Crypt creator Feldstein have been Jewish. Chabon’s novel discusses how early superhero stories were a reaction against Nazi Germany’s anti-Semitism and “master-race” ideology. (The Nazis were frequent villains in the early adventures of Superman, Wonder Woman and Captain America.) Further, Chabon discusses how superhero teams like Batman and Robin that teamed adult heroes with boy sidekicks catered to fatherless readers during and after World War II, and gave young boys role models. Other writers have observed how Charlie Brown’s frequent trips to Lucy’s psychiatry booth, where she gave advice for 5 cents, reflected America’s obsession with introspection during the 1950s and ’60s.
Comics have also affected America’s legal culture. Specifically, the foundations of modern copyright law include numerous court rulings protecting comic-book characters from infringement. Largely as a result of federal-court cases protecting the images and adventures of Superman, Mickey Mouse and other characters, American law now clearly recognizes that literary characters can be copyrighted or trademarked property. That recognition potentially includes the insight that comic books are a form of literary and artistic expression.
In a similar type of case, Winter v. DC Comics, the California Supreme Court ruled that a comic-book parody of real-life musicians Johnny and Edgar Winter was protected by the First Amendment, in spite of the musicians’ privacy right to control commercial exploitation of their images. The court ruled that such a privacy right does not trump the right of artists to comment on public figures or matters of public concern through creations that are not mere merchandise.
Charles Brownstein, director of the Comic Book Legal Defense Fund, says that such a ruling recognizes comics as equal to other literature. The ruling bodes well for the First Amendment rights of all artists.
Comics as a political and creative medium
Comic strips and comic books have won major awards for their political and historical commentaries and literary quality in recent decades.
In 1975, Gary Trudeau became the first comic-strip artist to win a Pulitzer Prize for editorial cartooning. His “Doonesbury” strip has focused on political and social issues for decades.
In 1992, Art Spiegelman won a Pulitzer Prize for the comic-book series Maus,an allegorical retelling of the Holocaust story in which the Jews are mice and the Nazis are cats.
In 1996, cartoonist Joe Sacco won an American Book Award for the “cartoon journalism” in his book Palestine, which chronicles his trips into Israel’s battle zones. Sacco has also written and drawn Safe Area Gorazde: The War in Eastern Bosnia, which has drawn widespread praise from literary critics.
Many other comics clearly have serious political value. As mentioned earlier, feminist leader Gloria Steinem considers the superheroine Wonder Woman to be such an important political symbol of female empowerment that Steinem put the character on the cover of the first issue of Ms. magazine. The 1972 cover proclaimed “Wonder Woman for President!” Steinem’s endorsement of Wonder Woman helped revive interest in the character, and probably helped lead to the 1975-79 TV version of Wonder Woman, starring Lynda Carter. That show’s politically charged theme song told women, “The whole world is waiting for you, and the powers you possess.”
Thus, even comic-book fantasies can convey important political messages. That was definitely true during World War II, when comic heroes rallied against Nazism, during the Korean War, when comic heroes rallied against communists, and during the Vietnam War, when underground cartoonists rallied for peace and love. During the current war on terrorism, comic-book heroes are rallying against foreign and domestic terrorists and promoting messages of hope for American victory. Marvel Comics, DC Comics, Dark Horse Comics and other publishers released special-edition comics to raise money for disaster relief after terrorist attacks hit New York City, Washington, D.C., and Shanksville, Pa., on Sept. 11, 2001. Those comics, and a related auction, have raised about $1.25 million or more for 9/11 charities and the American Red Cross.
Superheroes have tackled other serious subjects before. For instance, the hero comic X-Men is an allegory about racial and religious prejudice, told as the story of mutants fighting for acceptance from mainstream society. During the mid-1980s, Marvel Comics and DC Comics published special issues that raised money for famine relief in Africa. Those issues showed Marvel’s X-Men and DC’s Superman and Batman helping famine victims. The superhero Iron Man has frequently waged a personal battle against alcoholism. A 2003 Marvel Comics miniseries, Truth: Red, White & Black, showed Captain America working to gain recognition for black World War II heroes who had been discriminated against by the U.S. military.
So, whenever the First Amendment protects comics, it protects every American’s right to tell important stories about key social issues.
“I did underground comix because of an idea that there should be a free press,” says cartoonist Jay Lynch, discussing his counterculture experiences in Rebel Visions. “At that time, Henry Miller’s books were still getting busted. Nabokov’s stuff was considered obscene. There was a lot of stuff that couldn’t be done, words that couldn’t be printed. We had the idea that what we were doing was breaking the ice so that there should be free speech in the print medium to make way for art.”
Many cartoonists have taken powerful advantage of that freedom to push the boundaries of the comics medium politically and creatively. Some instances:
Comic strips and comic books are mature media that deal with mature subjects in a variety of ways. But, unfortunately, many of the groundbreaking pieces of comic art discussed in this article have gained popularity only after uphill battles against censorship. For instance, “Doonesbury”‘s Trudeau has claimed that politicians upset by his satires have subjected him to multiple tax audits.
The struggle for equality
Less-explicit, adult-themed comics like Creepy, Vampirella and Heavy Metaleventually reached mainstream audiences by following Mad magazine’s example and publishing in large, glossy formats that fell outside of Comics Code jurisdiction.
Pioneering writers and artists worked to liberalize the Comics Code during the early 1970s. Marvel Comics writer and editor Stan Lee had helped solidify the “Silver Age” of comics a few years earlier by introducing contemporary drama to the superhero stories in Spider-Man, The Fantastic Four and The Uncanny X-Men. In 1971, the U.S. Department of Health, Education and Welfare wrote a letter to Lee asking him to do a Spider-Man story about the dangers of drug abuse. Although EC Comics had published anti-drug stories during the 1950s, the Comics Code specifically forbade stories involving illegal drugs. Lee decided to take a risk and publish an anti-drug story anyway. The government’s obvious approval and Spider-Man‘s enormous popularity enabled Lee to publish a three-issue, anti-drug story without the Comics Code seal.
The comics industry then rallied to amend the code, and DC Comics did its own anti-drug story in the pages of Green Lantern/Green Arrow. That story, a valuable classic among comic collectors, featured the first story about a superhero grappling with personal addiction to drugs. The story showed the Green Arrow inadvertently neglecting his teenage sidekick, Speedy, allowing him to become a heroin addict. The Green Lantern helped Speedy overcome this addiction, and the teenager then worked to help other addicts kick the habit. A decade later, President Ronald Reagan and first lady Nancy Reagan’s “Just Say No” anti-drug campaign endorsed issues of The New Teen Titans in which Speedy and other teenage superheroes fought drug dealers, encouraged addicts to enter detox programs, and told kids not to try drugs.
The Comics Code was also liberalized in the 1970s to allow the return of horror comics. Soon, comics appeared such as Tomb of Dracula, Werewolf By Night, Swamp Thing, Ghost Rider and others. Minority superheroes also appeared. The Black Panther, an African prince who doubled as a superhero, had previously appeared in Fantastic Four, and now got his own comic. Captain America gained a black sidekick, the Falcon. In a ground-breaking role reversal,Luke Cage: Hero for Hire introduced a black superhero, Power Man, who would soon have a white sidekick, Iron Fist.
Today, the Comics Code is mostly a toothless relic. Both large, mainstream publishers and smaller, “alternative” publishers print mature comics, and a legion of new, fledgling cartoonists publish their work primarily online — where free-speech rights are fairly broad under Reno v. ACLU. But as Jesus Castillo’s prosecution shows, some law enforcement officials may be unwilling to let comics explore the full rainbow of human experiences in the way that other literature has done. Further, as Michael Diana’s prosecution shows, once a court rules that one comic by an artist is obscene, that artist may become subject to privacy invasion and chilling, judicial restraints that prevent him or her from creating non-obscene art of an adult nature.
Former EC Comics editor Feldstein argues that censorship today may become worse than what he faced in the 1950s under the Comics Code. In particular, Feldstein expresses concerns that legislation advanced in the name of fighting terrorism might restrict journalistic freedom and allow greater government invasion of the privacy of common citizens.
If such concerns are valid, and if Castillo’s and Diana’s cases are part of a new anti-comics trend, a climate of censorship may be looming that would be inconsistent with what Superman would call “truth, justice and the American way.”
1 The Supreme Court defined “prurient” interest as a “shameful and morbid” interest in sex, as opposed to a “normal and healthy” interest, in Brockett v. Spokane Arcades, 472 U.S. 491 (1985).