Let’s You and Him Fight! CBLDF vs Fantagraphics

On the Comics Journal message board, Gary Groth (Fantagraphics co-owner) reveals that the Comic Book Legal Defense Fund has turned down their request for assistance. Fantagraphics has been sued by Harlan Ellison over their book The Comics Journal Library: The Writers.

Here’s Groth’s post (typos corrected):

The CBLDF will not help us. Their reason: What Ellison is suing over is not technically a comic.

In other words, even though it’s a book published by a comics publisher, the book itself is about comics, the book contains comics, and the book will be widely sold in comics specialty stories next to graphic novels — the CBLDF will not help us because what Ellison is suing over is prose.

If I had drawn myself in a succession of panels with word balloons in place with the same exact text, they would have defended us. Or so they have lead me to believe.

How this decision helps 1st Amendment rights within the comics industry is beyond me.

The thread continues with a discussion of the organization’s stated mission, other cases they’ve been involved in that widen the scope of their mission, and possible thoughts of a boycott. Groth announces that there will be a Fantagraphics defense fund, details to come. (via Journalista)

Tom Spurgeon has an email response from the CBLDF justifying their decision. Here’s an excerpt:

We were unable to offer monetary support for Fantagraphics’ case but did offer varieties of non-monetary support. Our board of directors determined that the case did not meet the threshold for us to offer monetary support, in accordance with our Bylaws. The Fund reserves its limited monetary resources for the defense of cases that impose an unjust restraint upon the First Amendment rights pertaining to content within the comics medium. Generally the Fund’s monetary resources are applied to criminal cases involving First Amendment issues directly pertaining to comics, and that have severe precedent bearing upon the sale or creation of works within the comics medium. In the rare instances where we have become monetarily involved in a civil case, those cases involved restraints upon the First Amendment rights relating to comics content and bore severe precedent implications on the Free Speech rights of others using the medium. The legal matters at issue in this case have more direct bearing upon journalistic prose than they do upon the comics medium that we are explicitly chartered to defend.

I have to say, I don’t find it compelling. Certainly, when a retailer faces criminal charges because of government prosecution, it’s a lot easier to rally the troops and gain widespread support. Here, Ellison isn’t easy to cast as a bogeyman (although I think what he’s doing is wrong, the relic of long-held bad blood on both sides), and he has friends in the industry, some of whom have been quite active for the CBLDF. Just at a guess, those relationships may not have been judged worth risking.

This is clearly a First Amendment case, however, and the argument that “it’s not REALLY comics” seems semantic at best. Thank goodness Fantagraphics is run by those stubborn enough to stand on and fight for principle regardless of cost. I look forward to hearing more about the defense fund; I think my usual CBLDF contribution may go there instead this year.

Update: Ellison has responded in his typical piss’n’vinegar way with insults, strawmen, and other signs of possible senility. I’m sorry, apparently it’s catching. Ahem.

35 Responses to “Let’s You and Him Fight! CBLDF vs Fantagraphics”

  1. Richard Marcej Says:

    “and he has friends in the industry, some of whom have been quite active for the CBLDF.”

    Even before I read the excerpt from CBLDF’s e-mail, that was the first thought that immediately came to my mind.

    I’m sure that the CBLDF not coming to Fantagraphics defense is because of their stated reasoning, that they wouldn’t allow personal friendships /associations get in the way, but the perception…..

  2. Tommy Raiko Says:

    Also, according to the response Tom Spurgeon posted, the CBLDF has offered to help in non-monetary ways. Maybe Fantagraphics doesn’t need or doesn’t value the Fund’s non-monetary offer, but the CBLDF’s seemingly often referenced participation in the Winters Brothers case wasn’t on a much deeper level either.

  3. Bob Says:

    “This is clearly a First Amendment case”

    I don’t think that’s exactly clear. “Congress shall make no law…”. Ellison isn’t congress or anything like it. It’s a civil case, so the First Amendment doesn’t really apply at all. Almost by definition.

  4. Johanna Says:

    The non-monetary ways offered were 1. finding counsel (which Fanta already has), 2. help in finding organizations that might help them financially (which they say they’re working on; they go on to say it’s unlikely they’ll find any), and 3. filing a Friend of the Court brief “if the specific legal issues pertain to the First Amendment concerns we are chartered to defend.” I’m guessing that’s not likely to happen either.

    Bob, that hasn’t stopped the CBLDF from getting involved in other civil cases or other cases that weren’t directly involving the First Amendment. Their mission is to protect the free speech (First Amendment) rights of comics professionals. How does Groth and Kim Thompson not qualify under that formulation?

  5. Tommy Raiko Says:

    …that hasn’t stopped the CBLDF from getting involved in other civil cases or other cases that weren’t directly involving the First Amendment…

    Yeah, but it’s not exactly as if precedent is an unshakable thing in these sorts of cases. As I pointed out in a rambling comment over on the TCJ message boards, it seems that as often as an organization will reason “We were involved in Situation X a while back, and now there’s the similar Situation Y, so we’ll get involved in this now” it may also reason “Well, we shouldn’t have gotten involved in Situation X back then, so we’re not going to get involved in similar Situation Y now.” Might not be fair, but it happens all the time…

  6. Tim O'Shea Says:

    You have to look at the larger picture. Does the ACLU agree to take on each case brought to them? I’m rather dismayed that you make it an either/or decision (don’t donate to CBLDF, donate to Groth’s fund, which is in essence what you’re saying you’re likely to do). When I donate money to a charity that’s trying to find a cure or help the homeless, I don’t do it with the stipulation they pursue certain kinds of research or help specific kinds of homeless people. I’m not sure why you see fit to seemingly punish (by not donating) the current and potentially future Gordon Lee cases because CBLDF didn’t do “right” by Groth and company. You look forward to hearing more about the defense fund, but it looks like you’re not willing to properly hear CBLDF’s reasoning on its decision (or appreciate the value of the help they did offer in this instance).

  7. Johanna Says:

    If by “properly hear” you mean “agree with”, no, I’m not likely to do that. I listened, I just found their decision and reasoning unconvincing. I think they made the wrong choice. If they’d said “we can’t afford it right now because we’re committed to Gordon Lee”, my opinion would be different.

  8. Tim O'Shea Says:

    Do you hold all the charities you donate to, to that level of accountability? To follow your logic on this, if they tossed Groth a $100 to help him, you’d be happy? They offered “to assist in finding organizations that may be able to assist them financially, and that’s something we’re still working on”, did they not? Groth happens to be the case you’ve heard about, I hazard to guess CBLDF has passed on financially supporting other cases in the past. Do you think they should run each case up the flag of popular opinion, so that you, me and anyone else can decide “Hmm, they should support this case. Nope, not that case.” I trust the CBLDF to make hard decisions, some I will not agree with. It disheartens me to see someone suggest not to donate to CBLDF because they didn’t pursue a popular preference on this round. I don’t see a need to pick sides, donate to Groth doesn’t have to mean you don’t donate to CBLDF. That being said, I could be wrong. :)

  9. Johanna Says:

    I often use dedicated contributions, yes. There are so many worthy organizations out there that everyone has to make decisions in their giving, and I prefer to give to those whose missions and choices I agree with. Whether I continue to donate to the CBLDF is a financial decision I need to make for myself.

  10. Tim O'Shea Says:

    But in announcing it, are you not also trying to influence others to not donate?

    Also are you choosing to ignore my point that you don’t know each and every case that CBLDF takes or refuses to take?

  11. Johanna Says:

    Tim, every blog post is a statement of my opinions, and the question of how much influence I have is an open one. I’m not the first to raise the idea, if you read the TCJ thread, of reconsidering donation direction, but I think it’s a good question. Others may come to a different decision, or they may have already stopped donating because of earlier bad press for the organization. Your continued belaboring of your point is likely to have the opposite effect you seem to desire.

    As for case knowledge, I think it’s irrelevant. If someone else chose to make public their rejection by the CBLDF, then I’d form an opinion based on the circumstances of that particular situation.

  12. Tim O'Shea Says:

    And I must be quick to add, I’m not challenging the other people on the TCJ board. I am taking issue because I respect you and this stance seems way out of line from what I normally read from you. That being said, you’ll remember I said about three posts ago: “I could be wrong.” I’m just a stubborn bastard, either way (ask my ex-wife :) ). And I respect you enough to be able to say: “We’re not always gonna agree.” Thanks for being the polite host you always are to your comments guests.

  13. Nat Gertler Says:

    I’m not seeing any problem with the CBLDF stance. It’s not a comic. It’s some other product produced by a company that produces comics… is the CBDLF supposed to choke up money for every lawsuit that Time-Warner faces?
    That it’s not comics is not a matter of semantics. Defending the creation and distribution of comics is specifically what the CBLDF is there for. It’s what they get my money for. And I’d hate to see money drained from the fund to support this non-comics conflict.

  14. Johanna Says:

    Nat, the CBLDF’s mission statement says “The CBLDF exists to fight censorship and defend the first amendment rights of comic book professionals throughout the United States.” Not comics, comic professionals. If they want to be pickier, they ought to fix their own phrasing. (I trust you’ll appreciate the fine distinction, since you are so often seen making similar clarifications online.)

  15. Ray Cornwall Says:

    I think you’re right on this, Johanna. The books in question are about comics- one’s an interview with comics writers, and the other is an oral history of Fantagraphics. I suspect that Ellison’s friendship with big donators is a key reason why the fund didn’t offer financial support.

    For years, the Fund has sold shirts decrying censorship. Not censorship in comics, but all forms of censorship. It’s sad to see that the Fund is backing away from this fight.

  16. Journalista - the news weblog of The Comics Journal » Blog Archive » Feb. 16, 2007: Shorter Journalista 6 Says:

    […] Fund has refused Fantagraphics’ request for financial aid in dealing with the Ellison suit. Johanna Draper Carlson isn’t impressed with Brownstein’s response, while Simon Jones is a bit more charitable […]

  17. Nat Gertler Says:

    Well, Johanna, if you want fine distinctions, I will note that the page you link to is not identified a their “mission statement” and that the bulk of that page is discussing their work as relating to comics. I will agree that the sentence you cite should be rewritten; they’ve shown at least an interest in being involved in cases of amateur creators, which is as it should be. But that web page isn’t what has driven me to support the CBLDF in various ways in the past, their defense of comics and the rights to create and distribute them has.

  18. Simon Jones Says:

    Perhaps what Fantagraphics should do is invite some artists to rework the offending portions of the book into sequentials…

  19. Joshua Macy Says:

    This is so clearly not a censorship or First Amendment case, but part of the never-ending feud between Ellison and Groth, that if the CBLDF had chosen to financially support Groth I’d have to reconsider my own contributions to them.

  20. Johanna Says:

    Aha! No one wins either way!

    Seriously, Joshua, you don’t think someone saying “you can’t use my name on the cover of your book reprinting an interview with me” is a free speech case?

  21. Joshua Macy Says:

    Seriously, I think it’s a right of publicity case. As far as I can tell it’s a pretty weak one, though I seem to recall the California has one of the stronger right of publicity laws. What’s at issue here (at least as far as I understand it) isn’t whether Groth can reprint the interview, but to what extent he can both trade on Ellison’s name and poke at Ellison with his description of famous comic dilettante (or whatever the phrase was) in selling the book. I’d be really worried about the CBLDF’s priorities if they spent money on something like this.

  22. Johanna Says:

    Joshua, that’s only one of the case’s issues, though. Ellison is also trying to edit the Comics as Art book prior to publication to remove people’s opinions he disagrees with. I find that idea chilling.

  23. Joshua Macy Says:

    Unless an amended complaint has been filed, I don’t see anything about that. I do see, though, that the defamation charge rests on a lot more than just the blurbing of him as a famous comics dilettante, and if the facts alleged are true his case is a lot stronger than I thought.

  24. Johanna Says:

    Comics as Art is mentioned as paragraph 3 on page 2 of Ellison’s filing. It’s elaborated on later in the same document.

  25. Monk Says:

    After reading about how much of a prick Ellison is (here, Penny Arcade, etc), I really don’t feel the need to read any more of his stuff.

  26. Joshua Macy Says:

    It’s mentioned, but I don’t see where it says he wants to edit it to remove opinions that he disagrees with, unless you’re simply characterizing defamation as “people’s opinions he disagrees with.” That’s not what defamation means in the law, and you don’t have a First Amendment right to make false statements of fact that damage someone–in fact you have an exception to your general First Amendment rights if what you’re doing is defaming someone (though the First Amendment imposes some limits on what counts as defamation depending on whether the plaintiff is a public figure and the intent of the person publishing the falsehood in order to balance it against the ability to publish news and generally discuss public figures–particularly officials).

    I don’t see how the CBLDF has an obligation to aid absolutely anyone associated with comics who’s accused of publishing malicious falsehoods, any more than the ACLU is obliged to leap to the defense of anybody who’s shouted “fire” in a crowded theater, or incited a crowd to riot, or issued death threats against someone. It’s not just a matter of husbanding scarce resources, it’s that vigorous defense of a right doesn’t imply that you have to fight to expand that right to cover various exceptions that have always existed to prevent its abuse.

  27. Johanna Says:

    I find it ironic (at best) that decades later, Ellison’s on the other side of the defamation claim. This whole thing started when he and Groth were sued for defaming Fleischer, and now he’s behaving as irrationally (in my opinion, of course). In other words, I don’t think either of those cases should have been filed. Having read the statements he’s objecting to, I don’t think “false statements of fact” applies.

  28. Nat Gertler Says:

    Which part do you think doesn’t apply? Because the items cited (not the dillitante bit, which isn’t Comics As Art, but the others) seem to be clearly statements of fact. “The judge approved the arrangement and Ellison lost the motion but refused to reimburse Fleisher’s out of pocket expenses as agreed.” “[…] we learned that the judge was about to order U.S. Marshals to arrest Ellison for failing to obey a court order.” “He was always coming up with schemes to wheedle out of paying his bills.”

    I can’t speak to whether these claims are false or not.

  29. Paul O'Brien Says:

    “Nat, the CBLDF’s mission statement says “The CBLDF exists to fight censorship and defend the first amendment rights of comic book professionals throughout the United States.” Not comics, comic professionals.”

    Er, no. The way you’re interpreting that mission statement, it would be enough for anyone to come along and say “I am a comic book professional and I have a completely unrelated first amendment issue. Give me my handout.” Run into trouble with your blog? Written a vaguely controversial novel? Why, if you once wrote an issue of GREEN LANTERN, the CBLDF is there to bail you out.

    No. Clearly not.

    What the CBLDF’s mission statement means is that they deal with first amendment issues that affect comic book professionals IN THAT CAPACITY. That need not necessarily involve an actual comic, but it certainly has to involve something to do with the comic book industry.

    Gary Groth is unquestionably a comic book professional, but this is a defamation action about something he’s written in a non-fiction book that merely happens to be about comics. This case has nothing to do with the creation of comics. It raises no issue of wider concern to the comics industry. It doesn’t even seem to involve a precedent in the law of defamation. It’s just the latest squabble in a long-running personal feud.

    That is not what the CBLDF is for. The Board is right.

  30. Paul O'Brien Says:

    (Footnote: You could of course argue that all defamation cases indirectly affect comic book professionals. Obviously that’s true to some extent. But if you wanted to support freedom of speech on such a vague and general level, presumably you’d have given your money to the ACLU, not the CBLDF.)

  31. Blog@Newsarama » Your Ellison/Fantagraphics update of the day Says:

    […] Johanna has some thoughts on recent events, as well as the usual tasty links. Some good comments too. […]

  32. Terram Says:

    Massive entitlement from the CBLDF to defend a non-comic book over a non-censorship, non-First Amendment issue.

  33. Glenn Hauman Says:

    For the record, Ellison himself has often done benefits and given time and money on behalf of the CBLDF, as has Fantagraphics. I suspect that in this case, the CBLDF would be unable or unwilling to make a determination in the face of the counterclaims between the two parties.

  34. Ellison Fantagraphics Suit Resolved » Comics Worth Reading Says:

    […] CBLDF Refuses to Get Involved […]

  35. Andre Says:

    Maybe they are just poor and can’t fight every fight so they are picking battles?
    Still a slap on the wrist for the CBLDF would not be out of line imo.




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