Do comic books face censorship today?
Yes. In the 2000 case Texas v. Castillo, a book dealer was convicted of obscenity for selling a sexually explicit comic book.
Aren’t comic books supposed to be for kids?
Not necessarily. In America, most comic-book readers are adults, almost 70%. Many more comic-book readers are older teenagers. The same is true in Europe and Japan, where comics are not stigmatized as a children’s medium. Thus, many of today’s comic books are intended for mature audiences, in the same way that many television programs, movies and novels are intended for mature audiences. Of course, publishers still print certain comics almost exclusively for children, and print other comics, such as Archie or Batman Adventures, for mixed audiences.
But adult comics have an old and fairly distinguished heritage. America’s first comics to contain original material may have been the sexually explicit “Tijuana Bibles” of the 1920s or earlier. Adult-oriented “underground comix” played a prominent role in promoting counterculture politics during the 1960s and ’70s. The adult comic Maus, an allegory about the Holocaust, won a Pulitzer Prize during the 1980s. Modern comics from authors Daniel Clowes and Harvey Pekar have been made into critically acclaimed, dramatic films.
Are comic books legally allowed to publish mature content, including sexually explicit or violent material?
Yes, under the Supreme Court’s rulings in cases including Winters v. New York, Miller v. California and Ashcroft v. Free Speech Coalition. Those cases protect all forms of literature and art under the First Amendment, except when a particular item constitutes “obscenity” or “child pornography.”
A work of literature or art is not “obscenity” unless, (1) as a whole, the work appeals to a "prurient" interest in sex an abnormal, unhealthy interest in sex; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value. The first two prongs of that Miller v. California test are judged by contemporary community standards, and the third prong is judged by contemporary national standards, under precedent in Pope v. Illinois. “Child pornography” is defined as sexually explicit images of actual minors or based on actual minors. Images of youthful adults, and images of children who have never existed in the real world, are not child pornography under the Free Speech Coalition ruling.
(See more on obscenity and pornography in Adult Entertainment.)
How can parents know whether particular comics contain mature content?
Most comic books now have warnings or ratings on their covers if they contain mature content. Marvel Comics and DC Comics, the respective publishers of Spider-Man and Superman, mostly publish material that would be “G” or “PG” at the theater, except when a rating or warning on the cover indicates otherwise. When such warnings are present, the material is usually comparable to a “PG-13” film or an “R” rated film if the comic is part of DC’s Vertigo line or Marvel’s MAX line but no more explicit than that.
Parents can safely assume that Archie and its spinoffs are all “G” material, and that Mad magazine is usually “PG-13.” Parents should assume that comics from DC’s Vertigo and Marvel’s MAX lines are for adults only, unless parents screen specific issues. MAX comics are not available on newsstands, but are sold in comic-collectible stores. Parents should also assume that the following comics are for adults only unless screened: Heavy Metal, Vampirella, Love and Rockets and its spinoffs (except the children’s book Measles), and anything that says it was authored by Robert Crumb.
The content in Elfquest comics has varied from innocent fairy tales to sexual romps, and the earliest issues with mature content did not always bear warning labels. So parents of younger children may wish to screen older issues of Elfquest for mature content.
Parents of young children likewise might want to screen comics from small, independent publishers. Some of those publishers put out critically acclaimed works of fiction and nonfiction that make good reading for adults and older teenagers but are inappropriate for children.
Do nudity or sexual content automatically make a comic obscene?
No. The Supreme Court ruled in Jenkins v. Georgia that "nudity alone is not enough to make material legally obscene under the Miller standards," even when sex acts are indirectly simulated. But certain direct, nude portrayals of sexual activity ("hardcore" images) may be patently offensive and/or prurient according to the community standards of some jurisdictions. Such images may constitute “obscenity” if they have no serious literary, artistic, political or scientific value.
Can comics that are not obscene or child pornography legally be withheld from adults?
No. 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.”
What about 'indecency' can sexually explicit comics that aren't obscene or child pornography be regulated to protect children?
Yes, if the comics are legally found to constitute “indecency,” but regulations cannot prevent adults from viewing or buying merely indecent material. For instance, local laws could require stores to place adult comics on high shelves, but localities could not simply ban all adult comics or unduly hassle adults who want them. In numerous cases such as Butler v. Michigan, Bolger v. Youngs Drug Products Corp., Reno v. American Civil Liberties Union and Sable Communications v. FCC the Supreme Court has overturned bans on merely indecent material, and has ruled that adults must be allowed access to it, even when a few children might improperly be exposed to adult material.
In FCC v. Pacifica, the Supreme Court defined “indecency” as "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."
Of course, when there is no reasonable risk that children will be in the audience, or when reasonable precautions keep most children out, indecency law is often a poor justification for censorship. That’s one reason why the Supreme Court has allowed indecent material to appear on the Internet, cable TV, and phone-sex lines, in mailings, in traditional novels and books, and also in pictorial magazines that are kept out of children’s reach.
Further, not all sexual material is patently offensive. Otherwise, stores might have to sell standard encyclopedias and health textbooks from high shelves and even the Bible might suffer such treatment to prevent children from reading its erotic Song of Solomon without supervision. Indecency law is strongest in regulating non-cable television and radio broadcasts.
Can a comic-book retailer be convicted of selling obscenity if he or she didn’t know a particular book was sexually explicit?
No. 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, according to the Supreme Court’s ruling in Smith v. California. In Hamling v. United States, the Court ruled that the seller or distributor does not have to be aware the item is legally obscene. However, retailers should be aware that the presence of warning labels on explicit material can be evidence of knowledge of its character, as in the state case Texas v. Castillo.
Can comic-book publishers be penalized for publishing 'indecency' on the Internet?
Not according to the Supreme Court’s ruling in Reno v. ACLU. However, the Court’s later ruling in Ashcroft v. American Civil Liberties Union potentially opens a door for communities with conservative sexual mores to prosecute online material as “obscenity” even when it is considered only “indecent” in a liberal community where it was placed online. Yet sexually explicit material that has clearly serious political, artistic, literary or scientific value cannot legally be declared obscene in any community, according to the Supreme Court in Pope v. Illinois.