Spotlight on Legal Counsel: Burton Joseph

If you work in comics and your First Amendment rights are under attack, Burton Joseph is your first and best line of defense. As legal counsel to the Comic Book Legal Defense Fund, Joseph stands ready to offer expert advice and legal support to comics professionals whenever their rights to free expression are compromised. And he's only a phone call away.

Joseph's interest in First Amendment issues was ignited in the late 1960's when he served as a volunteer for the historic defense of Henry Miller's Tropic of Cancer. "I got hooked," he admits. "I became a bleeding-heart, knee-jerk First Amendment lawyer. And I've never been sorry."

Since then, Joseph has tried some of the most important First Amendment cases of the past twenty years: ABA v. Hudnut (challenging the feminist pornography ordinance), ABA v. Virginia (challenging "harmful to minors" display laws), and Playboy Entertainment Group v. Department of Justice. He's also on the front lines of the struggle for free expression on the Internet, working as counsel for ALA/ACLU v. Reno.

Joseph is a founding member and former chairman of the Media Coalition, a First Amendment group whose membership includes the American Booksellers Association (ABA), the Motion Picture Association, the Magazine Publishers of America, and more than a dozen other media trade associations and foundations, including the CBLDF. He's also an active member of the ACLU and a founder of Chicago's Lawyers for the Creative Arts. In addition to his work for the CBLDF, Joseph serves as special counsel to Playboy Enterprises, Inc.

But despite his affiliation with these large media organizations, Joseph's sympathies remain staunchly with the underdog. "In the beginning of my career," he confesses, "every time somebody got screwed by a used car dealer, I would attack it like it was the most important constitutional case in the nation--much to my boss's dismay. But my view as an attorney has always been that justice must be done."

Joseph's involvement with the Fund goes back to its very founding. When an Illinois court found a Friendly Frank's retail store guilty of violating a harmful to minors statute, Joseph was called in to handle the appeal. Although he had read comics as a kid, researching the titles involved in the Friendly Frank's case opened his eyes to the possibilities of the medium. "I saw comics then in much the same way that we see rap lyrics today--cutting edge, anti-establishment, resolutely individualistic--and that appealed to me." Joseph won the appeal and the guilty verdict was reversed.

Joseph officially joined the CBLDF as legal counsel in 1994. When the Fund receives a request for assistance, Joseph acts immediately, working closely with the Fund's executive director to determine the facts. If the incident involves actual charges filed against a retailer or creator, Joseph considers the First Amendment implications and submits his opinion and recommendations to the CBLDF board of directors. If the board approves, he then works with the retailer, artist, or publisher to secure local counsel and fashion a defense.

The CBLDF is here as a service to the comics industry. If a retailer or creator has any doubt...they should call the CBLDF.

More frequently, however, Joseph is able to diffuse incipient censorship incidents before any charges are filed. "When a law enforcement officer comes into a store and says 'I want you to move these comics and put them under the counter, and if it's not done when I come back, you're going to get cited,' there's no time or need to consult the board. When immediate action is required and it's well within our guidelines and precedent, I act under the authority given to me by the board."

That action usually takes the form of advising the retailer or creator about their constitutional rights, and with their consent, contacting the local prosecutor. Joseph sets forth the precedent in legal decisions and demonstrates that the creation or sale of the material in question is protected by the Constitution. "The local authorities," he adds, "expose themselves to substantial damages if they deny the First Amendment rights of either a potential patron, or a publisher or creator, or a retailer. Once they've familiarized themselves with the law, they tend to back off."

"There was an incident recently," Joseph recalls, "that's a good example: B & B Comics in Bemidji, Minnesota. The shop had a Frank Frazetta poster visible in the window and the city attorney came in and said 'look, we don't like that in our community, I've had a number of objections, you need to take it down.' The shop owner, Roy Booth, contacted the CBLDF immediately. We notified the city attorney that display of the poster was well within the owner's rights, and those rights would be vigorously defended. The attorney backed down quickly; he claimed he wasn't threatening anything, just making a suggestion. And that was the end of that."

Joseph stresses that retailers should be promptly responsive to any suggestion of censorship, whether they originate with conservative community groups or come from official sources. "Like all booksellers," Joseph recommends, "comic retailers should familiarize themselves with the requirements of the local display laws. They need to understand what their rights are, where they should take a firm stand and where they might have to back down."

"It's easy for me to pontificate about the First Amendment," continues Joseph, "but the store owner has to do business in the community. I try to guide them in preventative positions. It's always in the retailer's best interest to take a firm, respectful, and conciliatory stance. But we never recommend the surrender of any substantial First Amendment rights. In the long run, I think these strategies work very well."

"The CBLDF is here as a service to the comics industry. If a retailer or creator has any doubt, or even if there is no doubt and he or she just wants some recommendations, they should call the CBLDF."

Joseph's wide-ranging experience in the battle to protect First Amendment rights gives him a unique perspective on the particular issues faced by the comics industry. "The fight we always have with comics is in part generational. People who remember Archie often don't realize that most comics today are purchased by adults. Parents and community leaders don't understand the nature of comics and the range of subjects they can talk about. But it's not unlike the fight over the "Decency Standard" for NEA grants, or the fight over indecency on the Internet. It's one generation not quite understanding what is appropriate, what is art in the eyes of the next."

Joseph also sees these fights in the broader context of America's on-going culture wars. "The Christian Coalition and other conservative groups claim that all our problems are the result of declining moral values. Politicians pick this up and campaign on it, and of course the first thing that's attacked is reading habits, viewing habits, listening habits . . . Censorship is always looked upon as an easy answer to complex social problems. And it's easier to pass a law censoring comic books than it is to deal with poverty, sexism, racism, and abuse in our society. Too many people think that all we have to do is censor rap music and comic books, and put a V-chip in every television, and our other problems will cure themselves. To promote censorship as a quick fix for our social problems is ideologically absurd."