In 1954, the U.S. Senate Subcommittee on Juvenile Delinquency held hearings focused on the perceived problem of violent and sexual comic books in corrupting the youth.[1] In response, the Comics Magazine Association of America formed the Comics Code Authority (CCA), a self-censorship body which lasted from 1954 to 2011 and whose influence shaped the American comic book industry.[2] For a book to get wide distribution, it had to have the seal of the CCA, which it got by adhering to certain content standards including: “[r]espect for parents, the moral code, and for honorable behavior shall be fostered” and “symbols which have acquired undesirable meanings are forbidden.”[3]
The recent renewal of such perceived threats to the minds and morals of American children has prompted new proposals for regulating books in public libraries and school classrooms.[4] Perhaps the most notable among these laws are Florida’s Stop WOKE Act (2022) and HB 1467 (2022), the latter of which recently has resulted in teachers having to remove their classroom libraries entirely, out of fear of being charged with a third-degree felony for having unapproved books.[5] These measures are not often specifically targeted at comic books, but the literally graphic nature of comics can make them an easy target for those looking for objectionable material. For example, the American Library Association lists the most challenged book of 2021 as the graphic novel Gender Queer: A Memoir by Maia Kobabe, which was “[b]anned, challenged, and restricted for LGBTQIA+ content, and because it was considered to have sexually explicit images.”[6]
In place of outright bans, some groups have proposed rating systems for books.[7] Such systems are fairly common for media; examples include the Motion Picture Association’s (MPA) G through NC-17 system for movies[8] and the Entertainment Software Rating Board’s (ESRB) E through A system for video games.[9] For comparison, the old CCA stamp of approval might be seen as a “G” for general audiences or “E” for everyone rating, as it signaled to newsstands that the book was acceptable to sell to readers of all ages.[10] The MPA and ESRB systems come from industry groups though, and what is unusual about some of the recent proposals is that they are coming from state legislatures.
In November 2022, Texas State Representative Tom Oliverson introduced HB 338, proposing the creation of a “state-mandated rating system for books in school libraries.”[11] Publishers selling books to school districts or open-enrollment charter schools would be required to affix a rating label to book covers, with those ratings comprised of a “BK-” prefix followed by “Y,” “Y7,” “G,” “PG,” “14,” or “MA,” indicating the age group for which the book is intended (subject to review by a state agency).[12] Schools would then be prohibited from making books available to students in the grade level below the rating threshold.[13]
The definition of what qualifies for each rating, however, is at least somewhat vague and subjective. The BK-14 rating for example, applies to content which “may contain intensely suggestive dialogue or situations, profanity, and intense violence,” while an BK-MA title “may contain explicit depictions of sexuality, strong profanity, and graphic violence.”[14] Courts have developed a seemingly objective test for obscenity,[15] but when it comes to the line between “intense” and “graphic” violence, it would be all too easy for publishers or state review boards to rely too much on Justice Stewart’s famous line, “I know it when I see it.”[16]
Beyond problems with application, these ratings systems may also run into trademark issues. The Texas rating system uses similar (or the same in the case of G and PG) rating labels as the MPA. Oklahoma State Senator Warren Hamilton proposed a bill for rating books in his state and was hit with a letter from the MPA warning against infringing on the MPA’s trademark and confusing parents about who is issuing these ratings.[17] There might be an easy change here, such as changing the signifying coded letters, but the quick action by the MPA to get ahead of the Oklahoma bill suggests the value industry groups put in their ratings systems, some of which like the CCA itself were developed in response to a threat of state censorship.[18]
The CCA was abandoned in 2011 as the major publishers followed Marvel’s 2001 example and adopted their own ratings systems.[19] But the damage to the American comic book industry was done in just a few years, with comic books pigeon-holed for decades—and arguably still—as juvenile literature.[20] They were viewed as something from which to protect juveniles, rather than just another form of expression, storytelling, and way to get people reading more.[21] This latest round of attempted regulation over books in schools is and will be challenged; indeed, the Stop WOKE Act is already subject to an injunction against its implementation in Florida public universities.[22] There is little telling, however, how much damage will be done to publishers and students before the dust settles.
[1] Amy Kiste Nyberg, Comics Code History: The Seal of Approval, Comic Book Legal Defense Fund, https://cbldf.org/comics-code-history-the-seal-of-approval/ (last visited Feb. 9, 2023).
[2] Id.
[3] The Comics Code of 1954, Comic Book Legal Defense Fund, https://cbldf.org/the-comics-code-of-1954/ (last visited Feb. 9, 2023).
[4] See, e.g., Elizabeth A. Harris & Alexandra Alter, Book Ban Efforts Spread Across the U.S., N.Y. Times (Feb. 8, 2022), https://www.nytimes.com/2022/01/30/books/book-ban-us-schools.html (quoting the advocacy group No Left Turn in Education which maintains a list of books it claims “spread radical and racist ideologies to students”); Jeffrey Fleishman, School Librarians Vilified as the ‘Arm of Satan’ in Book-Banning Wars, L.A. Times (Jan. 27, 2023) https://www.latimes.com/politics/story/2023-01-27/school-librarians-vilified-as-the-arm-of-satan-in-book-banning-wars (tracing the impact of calls for book censorship on librarians including advocates accusing them of being pedophiles and acting as part of a “broader war against [] Christian[ity]”).
[5] Hannah Natanson, Hide Your Books to Avoid Felony Charges, Fla. Schools Tell Teachers, Wash. Post (Jan. 31, 2023, 6:00 AM), https://www.washingtonpost.com/education/2023/01/31/florida-hide-books-stop-woke-manatee-county-duval-county-desantis/.
[6] Am. Law Ass’n Office for Intellectual Freedom, Top 10 Most Challenged Books Lists, Banned & Challenged Books, https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10 (last visited Feb. 9, 2023).
[7] Jordan Smith, Book Ratings: A Tale of Four States, Comic Book Legal Defense Fund (Jan. 20, 2023) https://cbldf.org/2023/01/book-ratings-a-tale-of-four-states/.
[8] Film Ratings, Motion Picture Association, https://www.motionpictures.org/film-ratings/ (last visited Feb. 9, 2023).
[9] Ratings Guide, Entertainment Software Rating Board, https://www.esrb.org/ratings-guide/ (last visited Feb. 9, 2023).
[10] See Nyberg, supra note 1 (“Comics books received the Seal of Approval only if they were suitable for the youngest readers.”); see also David Hajdu, The Ten-Cent Plague 310 (2009) (quoting a comics publisher’s response to the suggestion that they reject required changes to an illustration to get the CCA seal, “[Printers] won’t print without the seal, distributors won’t ship without the seal, and the newsstands won’t sell without the seal.”).
[11] Proposed Texas Law Would Force Publishers to Create ‘Age Appropriate’ Ratings for School Library Books, PEN America (Nov. 16, 2022), https://pen.org/press-release/proposed-texas-law-would-force-publishers-to-create-age-appropriate-ratings-for-school-library-books/#:~:text=Tom%20Oliverson%20introduced%20HB%20338,enrollment%20charter%20schools%20in%20Texas.
[12] H.B. 338, 88th Leg. (Tex. 2022).
[13] Id. (prohibiting BK-PG, BK-14, or BK-MA materials below grade six and BK-14 or BK-MA materials below grade 9).
[14] Id.
[15] See Miller v. California, 413 U.S. 15, 36-37 (1973) (holding that states can regulate obscene material, which is determined through a wholistic view of the work and the application of “contemporary community standards”).
[16] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
[17] Payton May, Okla. Book Rating Bill Request Faces Potential Legal Issue with Motion Picture Association, ABC 13 News (Dec. 12, 2022), https://wset.com/news/nation-world/oklahoma-book-rating-bill-request-faces-potential-legal-issue-with-motion-picture-association-senator-warren-hamilton-motion-picture-association-ocpa-proposed-legislation.
[18] See Bob Mondello, Remembering Hollywood’s Hays Code, 40 Years On, NPR (Aug. 8, 2008), https://www.npr.org/2008/08/08/93301189/remembering-hollywoods-hays-code-40-years-on (noting that the Hays Code, which preceded the MPA rating system, was a response to backlash against Hollywood involving “the nation’s religious leaders [] forming local censorship boards and chopping up movies every which way to suit the standards of their communities”).
[19] Nyberg, supra note 1.
[20] See id.
[21] See Hajdu, supra note 10, at 311 (noting that even after the adoption of the code, 14 states passed legislation restricting content of comic books in the mid to late 1950s, and quoting one New York State assemblyman during those proceedings as saying, “We should not countenance any confusion of liberty with license and should move against those who persist in corrupting the mind and morals for profit.”)
[22] Ben Brasch, Judge Nixes Higher Education Portions of Florida’s Stop WOKE Act, Wash. Post (Nov. 17, 2022, 11:38 PM), https://www.washingtonpost.com/nation/2022/11/17/judge-nixes-higher-education-portions-floridas-stop-woke-act/.