Crime Cómics

Stanford Law Review
Crime Comics and the Constitution

Source: Stanford Law Review, Vol. 7, No. 2 (Mar., 1955), pp. 237-260
Published by: Stanford Law Review
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Crime Comics and the Constitution
Ever since "The Yellow Kid" first appeared in i896' comics
have been criticized;2 yet their popularity has grown. They
have flourished in comic book form since I932.3 Publication of
these booklets increased rapidly during World War II, and today
estimates of their circulation range from 6o million to go million
copies monthly.4 Recently, criticism of certain types of comic books
has become widespread.5 It has been directed neither at comic
strips in newspapers nor at animal or humor comic books, but at
"crime and horror" comics. It has been said that these constitute
one-fourth of all comics.6 Critics have included within this category
those which depict ghastly deaths,7 sex crimes8 and acts of cruelty'
and sadism;1" those which suggest the lust to kill,'1 criminal ideas
or forms of delinquent impulse,'2 and sexually abnormal ideas;'3
those which show how to commit crimes" or glamorize and ad-
vertise dangerous knives and guns'5-in short, comics that de-
moralize the child.'6
In recent years attacks on crime and horror comics have led to
demands for governmental control.'7 Manv American cities18 and
1. 23 WILSoN LIBRARY BULL. 257 (1948).
2. Smith, Publishers Improve Comic Books, 73 LIBRARY J. 1649 (1948).
3. 24 WILSoN LIBRARY BULL. 663 (1950).
4. FEDER, COMIC BOOK REGULATION 1 (Bureau of Public Administration, University
of California, Legislative Problems: No. 2, 1955) (hereinafter cited as FEDER); WERTHAM,
SEDUCTION OF THE INNOCENT 11 (1954); Interim Report of the Subcommittee to Investi-
gate juvenile Delinquency to the Senate Committee on the judiciary, 84th Cong., 1st Sess.
3 (1955); The New Yorker, May 8, 1954, p. 134, col. 1; Time, May 3, 1954, p. 78, col. 1;
San Francisco Chronicle, Oct. 1, 1954, p. 10, col. 3.
5. Among the groups that have attacked crime and horror comics are the National
Council of Juvenile Court Judges, N.Y. Times, July 4, 1954, p. 30, col. 5; the Child Wel-
fare Commission of the American Legion, N.Y. Times, Aug. 29, 1954, p. 40, col. 3; and the
General Federation of Women's Clubs, N.Y. Times, Nov. 25, 1954, p. 32, col. 5. The Na-
tional President of the Junior Chamber of Commerce has charged that "lewd and lawless"
comics threaten to spread moral decay among the nation's children. N.Y. Times, Aug. 26,
1954, p. 25, col. 4.
6. Time, May 3, 1954, p. 78, col. 1. 7. Time, Sept. 27, 1954, p. 77, col. 1.
8. San Francisco Chronicle, Aug. 2, 1954, p. 14, col. 1.
9. San Francisco Chronicle, Oct. 1, 1954, p. 10, col. 3.
10. WERTHAM, SEDUCTION OF THE INNOCENT 10 (1954).
11. San Francisco Examiner, Oct. 10, 1954, p. 1, col. 3.
13. The New Yorker, May 8, 1954, p. 134, col. 1.
15. WERTHAM, SEDUCTION OF THE INNOCENT 4-5 (1954).
16. Harker, Youth's Librarians Can Defeat Comics, 73 LIBRRY J. 1705 (1948); 37
NAT. EDUC. ASsoC. J. 570 (1948); Newsweek, May 3, 1954, p. 60, col. 3.
17. FEDER i. Among the organizations advocating legislative regulation are the Amer-
ican Legion, the Amvets, the California Congress of Parents and Teachers and the National
Council of Juvenile Court Judges. Id. at 11-12.
18. For collections of municipal ordinances, see FEDER 40-52; United States Confer-
ence of Mayors, Research Rep. No. 298, Nov. 22, 1948, p. 2.
237
238 STANFORD LAW REVIEW [Vol. 7: Page 237
at least two states'9 have reacted with some type

ulating the sale and distribution of comic books.20 Present-day
concern with crime and horror comics invites examination of the
obstacles imposed by the Federal Constitution to successful state
or municipal2' action against crime and horror comics.22 The Due
Process Clause of the Fourteenth Amendment protects free ex-
pression from state action to the same extent that it is protected
from federal actinn Iv the First Amendment 23
19. N.Y. CODE OF CRIM. PROC. ? 22a. Further New York legislation is noted in Time,
May 16, 1955, p. 50, col. 2. A recent Maryland enactment is reported in the Los Angeles
Times, April 30, 1955, p. 5, col. 1.
20. Foreign legislatures have also considered the problem. WERTHAM, SEDUCTION OF
THE INNOCENT 273-94 (1954). The English House of Commons had before it a bill pro-
hibiting comics that corrupt children. N.Y. Times, Feb. 12, 1955, p. 17, col. 8. The
Canadian Parliament, after hearing evidence from psychologists, juvenile judges and edu-
cators, made it an indictable offense to print, publish, distribute or sell any "crime comic."
13 GEo. 6, c. 13 (Canada, 2d Sess., 1949). This statute goes beyond those advocated in the
United States; it is broad enough to prohibit sales of "Dick Tracy," Regina v. Roher, 61 Man.
311 (1953); and certain magazines published for adults, dictum, Rex v. Alberta News Ltd.,
2 West. Weekly R. (n.s.) 691, 692-93 (Alberta 1951). The statute remains in effect al-
though Canadian publishers have established a self-regulatory system. 157 PUBLISHERS'
WEEKLY 45 (1950). In 1949 France enacted legislation against publications for children
which present crime in a favorable light. Law of July 16, 1949, [1949] RECUEIL DES Lois
pt. 2, at 410. And Brazil is considering a bill to ban American comics on the ground that
they tend to corrupt the morals of youth. N.Y. Times, Nov. 11, 1953, p. 13, col. 2.
21. "[M] unicipal ordinances adopted under state authority constitute state ac-
tion...." Lovell v. City of Griffin, 303 U.S. 444, 450 (1938). See also Garner v. Board
of Pub. Works, 341 U.S. 716 (1951); Schneider v. State, 308 U.S. 147 (1939); Jones v.
City of Portland, 245 U.S. 217 (1917).
22. While this Note is primarily concerned with local and state action against comics,
there is a possibility of federal action. Assuming that First Amendment objections can be
overcome, there remains the question of Congress' power to act:
Postal Power. For suggestions as to the extent to which Congress can censor the mails,
see Notes, Constitutional Law: Freedom of the Press: Power to Revoke the Second-Class
Mail Privilege, 34 CALIF. L. REV. 431 (1946), Postal Power-Exclusion of Periodical Publi-
cations from Second-Class Mailing Privilege-the Esquire Case, 45 MICH. L. REV. 230
(1946); 94 U. OF PA. L. REV. 325 (1946). For an extensive discussion, see Note, The Postal
Power and Its Limitations on Freedom of the Press, 28 VA. L. REV. 634 (1942). To be eli-
gible for the second-class mailing privilege, the material must be published for the dissemi-
nation of information or devoted to literature, the sciences or arts. 20 STAT. 359 (1879),
39 U.S.C. ? 226 (1952). 18 U.S.C. ? 1461 (1952) prohibits mailing obscene matter.
Commerce Clause. But comics distributors rarely use the mails; usually they ship the
books in interstate commerce by truck. Hearings Before the Subcommittee to Investigate
juvenile Delinquency of the Senate Committee on the Judiciary (Comic Books), 83d Cong.,
2d Sess. 54 (1954). If crime comics do demoralize youth, Congress would be acting within
its powers in closing the channels of interstate commerce to prevent the spread of such un-
acceptable influences. For an analogy, see Lottery Case, 188 U.S. 321 (1903) (regulation of
transportation of lottery tickets in interstate commerce). 18 U.S.C. ? 1462 (1952) prohibits
interstate shipments of obscene literature.
For an objection to the establishment of a general federal administrative control board,
see 1 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 355-57 (1947).
23. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 15 (1947); Murdock v. Pennsyl-
vania, 319 U.S. 105, 108 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940);
De Jonge v. Oregon, 299 U.S. 353, 364 (1937); Near v. Minnesota, 283 U.S. 697, 707
(1931); Gitlow v. New York, 268 U.S. 652, 666 (1925); 1 CHAFEE, op. cit. supra note 22,
at 34; Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judi-
cial Interpretation, 2 STAN. L. REV. 140, 168-70 (1949). An exception may exist in the
case of criminal libel. See Mr. Justice Jackson's dissenting opinion in Beauharnais v. Illinois,
343 U.S. 250, 288 (1952).
March io55] CRIME COMICS 239
FREEDOM OF ExPiRssION
Unprotected Expression
"Freedom of expression"24 applies t
is not confined to verbal utterances
bution as well as publication.26 But
is given First Amendment protec
Hampshire27 the defendant was con
iting the use of offensive language
Court unanimously held that there
teenth Amendment. Mr. Justice M
There are certain well-defined and narro
prevention and punishment of which hav
Constitutional problem. These include t
fane, the libelous, and the insulting or
by their very utterance inflict injury or
of the peace.28
After thus stating what seems to b

not be given First or Fourteenth Am
referred approvingly29 to the reason
to explain such exclusion. These utte
tial part of any exposition of ideas
value as a step toward truth....130
But later Supreme Court decisions have rejected the notion
that expression must present an "exposition of ideas" to be pro-
tected. In Joseph Burstyn, Inc. v. Wilson"' motion pictures were
said to be entitled to First Amendment protection even though
24. The separate guarantees of free speech and a free press in the First Amendment do
not mean that the two freedoms differ. 1 CHAFEE, op. cit. supra note 22, at 34-35; Richard-
son, Freedom of Expression and the Function of Courts, 65 HARv. L. REv. 1, 2 and n.l.
(1951).
25. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (movies); Thornhil
v. Alabama, 310 U.S. 88 (1940) (picketing).
26. Schneider v. State, 308 U.S. 147 (1939); Lovell v. City of Griffin, 303 U.S. 444
(1938).
27. 315 U.S. 568 (1942).
28. Id. at 571-72. It has been argued that the Court was referring to oral utterances
rather than written material when it used the terms "lewd" and "obscene." Lockhart and
McClure, Literature, the Law of Obscenity, and the Constitution, 38 MINN. L. REV. 295,
353-54 (1954). It is doubtful that the Court intended such a distinction since the dictum
mentioned libelous utterances.
29. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
30. CHAFEE, FREE SPEECH IN THE UNITED STATES 150 (1941).
31. 343 U.S. 495 (1952).
they were intended to entertain as well as infor

v. New York32 the Court said:
We do not accede to [the] suggestion that the consti
for a free press applies only to the exposition of idea
the informing and the entertaining is too elusive for th
basic right. Everyone is familiar with instances of p
fiction. What is one man's amusement, teaches ano
Though we can see nothing of any possible value to
magazines, they are as much entitled to the protectio
the best of literature.33
Thus the fact that crime and horror comics "do n

tial part of any exposition of ideas, [and] have a
value as a step toward truth" is apparently no
them protection as expression.
Despite its rejection of the Chafee test, the Su
without developing a substitute rationale, con
some expressions from protection. In the Beau
Court put group libel in the same category a
"fighting words"-excluded in the Chaplinsky
the Supreme Court relied heavily85 on the Chapl
the lewd and obscene, the profane and the libelo
the expressions excluded.
The objectionable features of crime and horror
"fighting words," profanity or any form of l
contended that such comics are obscene.86 Obs
connotes sexual immorality.87 For many year
was whether the matter tended to deprave an
whose minds were open to sexually immoral i
standard was the mind of a child or an immat
32. 333 U.S. 507 (1948). 33. Id.at510.

34. Beauharnais v. Illinois, 343 U.S. 250 (1952). 35. Id. at 255-57.
36. There is as yet no holding by the Supreme Court that obscenity is not protec
Under Professor Chafee's test it would be denied protection. 1 CHAFEE, GOVERNMENT A
MASS COMMUNICATIONS 56 (1947). Although the Supreme Court explicitly rejected his t
several of the Court's opinions do indicate that obscenity should not be protected
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 506 (1952); Beauharnais v. Illinois,
U.S. 250, 266 (1952); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (19
United States v. Limehouse, 285 U.S. 424 (1932). The analysis of Doubleday v.
York, 335 U.S. 848 (1948), made by Lockhart and McClure, Literature, the Law of
scenity, and the Constitution, 38 MlNN. L. REV. 295, 301 (1954), indicates that the con
tutional status of obscenity is not yet settled.
37. 1 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 211 (1947); Lockhart
McClure, supra note 36, at 321.
38. See, e.g., People v. Muller, 96 N.Y. 408 (1884); The Queen v. Hicklin, L.
Q.B. 360 (1868); Lockhart and McClure, supra note 36, at 326 n.209.
March I955] CRIME COMICS 24I
Judge Learned Hand criticized

adopted the less impressionable
standard by which to judge obs
sistent with Judge Hand's view
when judging publications intended for children. The norm by
which obscenity is measured should be the average member of
the group for which a publication is intended, not the average
member of the public at large.4' If so, some comic books may be
obscene when the immaturity of their intended public is taken
into account.42
But another aspect of the traditional test of obscenity has been
rejected: the notion that an isolated excerpt might condemn an
entire publication. In United States v. One Book Entitled Ulys-
ses4" Judge Augustus Hand considered the objectionable passages
in context and judged the book as a whole. Since then, most courts
have adopted his approach.44 The change is important here be-
cause most crime comic books are probably not obscene when con-
sidered as a whole.
Even though crime and horror comics may not be "obscene"
in the sense in which that term is used by the courts today, they may
be objectionable for the same reasons that deprive obscenity of pro-
tection. Comics have been attacked because of their emphasis on
brutality, violence and crime.45 Like obscenities, they are said to
39. United States v. Kennerley, 209 Fed. 119, 120-21 (S.D.N.Y. 1913).
40. E.g., Walker v. Popenoe, 149 F.2d 511 (D.C. Cir. 1945); United States v. One
Book Entitled Ulysses, 5 F. Supp. 182 (S.D.N.Y. 1933), afi'd, 72 F.2d 705 (2d Cir. 1934);
People v. Pesky, 230 App. Div. 200, 243 N.Y. Supp. 193, af'd, 254 N.Y. 373, 173 N.E. 227
(1930); State v. Lerner, 81 N.E.2d 282 (C.P. Ohio 1948); Commonwealth v. Gordon,
66 Pa. D. & C. 101 (1949), afF'd sub nom. Commonwealth v. Feigenbaum, 166 Pa. Super.
120, 70 A.2d 389 (1950); Lockhart and McClure, supra note 36, at 340.
41. Id. at 340-42.
42. A bill recently introduced in the California Assembly was directed at "comic books,
devoted to the publication and exploitation of sex or of matter of an indecent character,
which, for a minor, is obscene, lewd, lascivious, filthy, indecent, or disgusting...." Cal.
Assembly 323, 1955 Sess. [Emphasis added.] This bill was one of two introduced in the
California Assembly at the 1955 session; the other was Cal. Assembly 183, 1955 Sess. When
the Judiciary Committee declined to send 183 to the floor, it was assumed that 323 had also
been defeated. Sacramento Bee, March 16, 1955, p. 1, col. 4. But more recently, 183 was,
over protests of unconstitutionality, withdrawn from the deadlocked committee, passed by
both houses of the legislature in amended form and sent on to the Governor. San Fran-
cisco Chronicle, June 8, 1955, p. 8, col. 1. He vetoed it. San Francisco Chronicle, July 10,
1955, p. 1, cols. 6-7.
43. 72 F.2d 705 (2d Cir. 1934).
44. See, e.g., Parmelee v. United States, 113 F.2d 729 (D.C. Cir. 1940); Bantam Books,
Inc. v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (Ch. 1953), afi'd, 14 N.J. 524, 103 A.2d 256
(1954); Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution,
38 MiNr. L. REV. 295, 328 n.223 (1954).
45. Interim Report of the Subcommittee to Investigate Juvenile Delinquency to the
Senate Committee on the judiciary, 84th Cong., 1st Sess. 7 (1955). See, e.g., WERTHAM, SE-
DUCTION OF THE INNOCENT 94 (1954).
242 STANFORD LAW REVIEW [Vol. 7: Page :37
corrupt the morals of their readers.46 Perhaps c

stitute a unique category of unprotected express
expression enumerated in the Chaplinsky dictu
tended to be an exhaustive list of those types w
tected. In Beauharnais v. Illinois,"8 for example,
group libel to the list of expressions excluded
argued that group libel resembles the simple l
the Chaplinsky dictum less than publications
standards of social behavior resemble simple obs
that depicts, for example, a fiendish creature
while previously severed ones are stacked on r
man and woman await their turn, may have n
value than sheer sexual pornography.'9 Indee
Wertham, the chief critic of crime and horror co
such comics as the "new pornography."50 But th
has indicated that it hesitates to expand the cate
tected expression."' And the fact that crime a
offer their brand of immorality chiefly to child
to tip the balance. Justice Clark remarked in
It is further urged that motion pictures possess a g
evil, particularly among the youth of a community
of expression. Even if one were to accept this hypo
follow that motion pictures should be disqualified f
ment protection.52
If crime and horror comics are not obscene and

a separate category of unprotected expression
cope with those constitutional doctrines designed
of expression.
46. Interim Report of the Subcommittee to Investigate juvenile Delinquency to the

Senate Committee on the Judiciary, 84th Cong., 1st Sess. 14 (1955). See also note 16 supra.
47. See p. 239 supra.
48. 343 U.S. 250 (1952).
49. For an interesting reaction to this picture, see N.Y. Times, June 5, 1954, p. 15,
col.7.
50. WERTHAM, SEDUCTION OF THE INNOCENT 328-29 (1954).
51. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-2 (1952); Winters v. New York,
333 U.S. 507, 510 (1948).
52. Joseph Burstyn, Inc. v. Wilson, supra note 51, at 502. It should be noted that it is
not entirely clear from the phrasing of this excerpt which argument for denying First
Amendment protection Justice Clark rejected-the argument that motion pictures have a
greater capacity for evil among youth than do other forms of expression or the argument
that they have a greater capacity for evil generally.
March 1955] CRIME COMICS 243
Protected Expression
Restriction Prior to Publication. Whatever leeway a legislature

may have in making certain expressions punishable under certain
circumstances, it is generally assumed that prior restraints of pro-
tected expression are unconstitutional."3 Today most statutes and
ordinances dealing with obscenity and with comic books reflect
this assumption and provide only for post-publication sanctions.5"
But the desire to keep objectionable publications off the news-
stands and difficulties of statutory enforcement have given rise to
the widespread practice of "informal governmental" censorship.55
Police warn dealers that certain of their publications are regarded as
objectionable under local obscenity ordinances. These warnings
carry, sometimes only by implication, the threat of future prosecu-
tion.56 Such warnings have been successful since most distributors
53. Prior restraints may be imposed in the form of injunctions, license requirements
or taxes.
Injunctions. In Near v. Minnesota, 283 U.S. 697 (1931), the Supreme Court held that
it was unconstitutional to enjoin a malicious and defamatory publication because the injunc-
tion was a prior restraint. Ordinarily the mischief done by restraining a man from reaching
his public-so long as he remains responsible for an abuse of his right to do so-outweighs
the small likelihood that his utterance will bring about the evil to be prevented. Id. at 722.
The Court added, however, that the constitutional prohibition against prior restraints has its
limits; obscene publications, those obstructing the war effort, incitements to violence and
violent overthrow of government were listed as instances in which prior restraint may be
constitutional. Id. at 716. Apparently the Court believed that the evils resulting from cer-
tain utterances can effectively be avoided only if the utterances are prevented from reaching
the public.
Licenses. The Supreme Court has upheld statutes which regulate the time, place and
manner of expression by requiring that a license be obtained. Poulos v. New Hampshire,
345 U.S. 395 (1953); Cox v. New Hampshire, 312 U.S. 569 (1941). But in Lovell v.
City of Griffin, 303 U.S. 444 (1938), the Court struck down a statute which conditioned
the granting of a license on the content of the expression. The Court said that this statute
was invalid because it was not limited to literature that was obscene or offensive to public
morals or advocated unlawful conduct, but embraced all literature. The opinion left open
the possibility that the content of a publication can be regulated by a well drafted licensing
statute. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505-6 (1952), indicated that the pos-
sibility exists in the case of motion pictures. However, Justice Douglas, with Justice Black
concurring, has indicated that, in his opinion, no censorship of motion pictures is permis-
sible. Superior Films, Inc. v. Department of Educ., 346 U.S. 587, 589 (1954).
If a licensing statute which regulates the content of an expression is to be upheld, it
must not allow room for discrimination in its enforcement; in most cases, the licensing au-
thority is allowed relatively unlimited discretion in making a decision to grant or withhold
a license. See Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S.
268 (1951); Cantwell v. Connecticut, 310 U.S. 296 (1940); Schneider v. State, 308 U.S.
147 (1939).
Taxes. Censorship under the guise of a tax has been held unconstitutional. See Gros-
jean v. American Press Co., 297 U.S. 233 (1936).
54. See, e.g., comic book ordinances adopted or proposed in Salinas and Riverside, Cali-
fornia; New Orleans, Louisiana; St. Paul, Minnesota; Youngstown, Ohio; Tacoma, Wash-
ington. These ordinances are collected in FEDER 41-52.
55. Notes, Regulation of Comic Books, 68 HARV. L. REV. 489, 494-99 (1955), Cen-
sorship of Obscene Literature by Informal Governmental Action, 22 U. OF CHI. L. REV.
216 (1954).
5 6. Id. at 2 19.
and booksellers prefer to avoid the trouble an

ing a criminal suit-of proving that the public
not fall within the ordinance or of establishi
cannot constitutionally be applied.57 Furthermore, merchants
would probably rather co-operate and withdraw publications from
display than risk unfavorable publicity in a prosecution for dis-
tributing objectionable publications.58 Occasionally, the conse-
quence of a failure to co-operate is a more subtle harassment of
dealers by inspections and prosecutions under local building, health
or safety ordinances.59 The constitutionality of such procedures
has been questioned.60 The more extortionary of these police prac-
tices are, in effect, prior restraints on free press.6'
But many comic book ordinances provide that a board or com-
mittee of private citizens shall review these publications and notify
the City Attorney where prosecutiop seems necessary.62 In some
instances the board is prohibited from threatening a dealer with
prosecution.63 Apparently these ordinances are intended to avoid
the danger of informal-and unconstitutional-prior restraints.
Restriction after publication. Although the Supreme Court has
interpreted the First Amendment as prohibiting almost all prior re-
straints on expression, it has indicated that statutes restricting free
expression by imposing criminal responsibility for its exercise will
be upheld under certain circumstances. The modern judicial ap-
proach to such infringements of free expression has its origin in the
clear and present danger test, first articulated by Justice Holmes :64
Expression can be restricted only when it creates a clear and present
danger of a substantive evil that the legislature has a right to pre-
vent.65
57. Id. at 220. 58. Ibid. 59. Id.at 219.

60. See Notes, Regulation of Comic Books, 68 HARV. L. REV. 48
sorship of Obscene Literature by Informal Governmental Action, 22 U. OF CHI. L. REV.
216, 223 (1954).
61. Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (Ch. 1953), ag'd
14 N.J. 524, 103 A.2d 256 (1954).
62. See, e.g., Oklahoma City, Oklahoma, Ordinance No. 7371, Sept. 7, 1954; Tacoma,
Washington, Ordinance No. 15052, July 12, 1954; ordinance of Jacksonville, Florida, re-
ferred to in FEDER 49-51.
63. See, e.g., Oklahoma City, Oklahoma, Ordinance No. 7371, ? 3, Sept. 7, 1954;
ordinance of Fort Worth, Texas, referred to in FEDER 48.
64. Schenck v. United States, 249 U.S. 47 (1919). Today it is largely an academic
question whether Justice Holmes was justified in creating an exception to the flat prohi-
bition of the First Amendment. Professor Meiklejohn expressed the opinion that Justice
Holmes' "philosophizing" led to the annulment of the First Amendment rather than to its
interpretation. MEIKLEJOHN, FREE SPEECH 47-56 (1948).
65. See, e.g., Craig v. Harney, 331 U.S. 367, 376 (1947); Thomas v. Collins, 323 U.S.
516, 530 (1945); Cantwell v. Connecticut, 310 U.S. 296, 311 (1940).
March I9551 CRIME COMICS 245
It is now recognized that "clear and pr

a shorthand expression for an interest-b
tors to be considered in the balancing p
scribed in Dennis v. United States,67 a ca
was upheld as constitutional. A majority
adopted Judge Learned Hand's reformulation of the clear and
piresent danger test:
In each case [the courts] must ask whether the gravity of the "evil,"
discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger.70
Before the Dennis case the Court had emphasized the imminence
of the threatened evil.7' Judge Hand substituted probability for
imminence. He explained:
Given the same probability, it would be wholly irrational to condone
future evils which we should prevent if they were immediate; that could
be reconciled only by an indifference to those who come after us. It is
only because a substantial intervening period between the utterance and
its realization may check its effect and change its importance, that its
immediacy is important. ....72
Even though the gravity of the evil discounted by its improbability

is great, governmental action abridging free expression is justified
only if it is "necessary," in the sense that there is no reasonable al-
ternative remedy to curb the evil.73
Assuming that Judge Hand's statement expresses the current
66. For a time there seemed a danger that the clear and present danger test would be
applied mechanically. See Justice Frankfurter's concurring opinion in Pennekamp v. Florida,
328 U.S. 331, 353 (1946). See also Corwin, Bowing Out "Clear and Present Danger,"
27 NOTRE DAME LAW. 325 (1952).
67. 341 U.S. 494 (1951). See Corwin, supra note 66; Mendelson, Clear and Present
Danger-From Schenck to Dennis, 52 CoL. L. REV. 313 (1952); Schmandt, The Clear and
Present Danger Doctrine: A Reappraisal in the Light of Dennis v. United States, 1 ST. Louis
L. REV. 265 (1951).
68. 18 U.S.C. ? 2385 (1952).
69. Dennis v. United States, 341 U.S. 494, 510 (1951).
70. United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950).
71. See, e.g., Herndon v. Lowry, 301 U.S. 242, 260-64 (1937); Whitney v. California,
274 U.S. 357, 376 (1927) (Brandeis, J., concurring); Schenck v. United States, 249 U.S.
47, 52 (1919).
72. United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950).
73. The cases which exclude some expressions from First Amendment protection can
also be rationalized as resulting from a balancing of interests. See Beauharnais v. Illinois,
343 U.S. 250 (1952); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). It can be
argued that a state's interest in avoiding the effects of libel, fighting words and obscenity
outweighs the importance of the expression in any situation. Similarly, it can be argued that
the general unconstitutionality of prior restraint reflects a judgment that the danger of
authority to prevent publication outweighs most of the evils that may result from publica-
tion. Near v. Minnesota, 283 U.S. 697, 722 (1931).
version of the clear and present danger test, ther

question whether that test has any application exc
ultimate evil to be prevented is overthrow of go
violence. It is true that the most explicit applications o
occurred in cases dealing with anti-subversion or
statutes.74 But the Supreme Court has also mentio
present danger" in dealing with utterances that threa
of the peace.75 Moreover, the Court has consistently
"clear and present danger to the administration of j
viewing cases where publications criticizing judicial a
held in contempt of court.7"
But even if the clear and present danger test applie
lems of free expression, there is some uncertainty wheth
mulation advanced in the Dennis case is to be used w
test applies. In that case the evil was a threat to the
government itself; certainly crime comics would not
so great an evil. But since Judge Hand phrased his te
terms, it seems likely that he meant to redefine "cle
danger" for all purposes.77
If so, a statute regulating sale and distribution of
will raise three problems: (i) How great is the evil th
crime and horror comics? (2) How probable is it that
will cause that evil? (3) Is there an alternative me
74. See, e.g., Dennis v. United States, 341 U.S. 494 (1951); Whitn
274 U.S. 357, 372-80 (1927) (Brandeis, J., concurring); Gitlow v. N
652, 672-73 (1925) (Holmes, J., dissenting).
75. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 308 (1940);
bama, 310 U.S. 88, 105 (1940).
76. See, e.g., Craig v. Harney, 331 U.S. 367, 372-73 (1947); Pennekamp v. Florida,
328 U.S. 331, 348 (1946); Bridges v. California, 314 U.S. 252, 261-63 (1941).
77. T1ihe Dennis decision has not escaped criticism. One critic has commented that "a
regrettable feature of the new formula is that its limits are subject to speculation." Comment,
Reformulation of the Clear and Present Danger Doctrine, 50 MICH. L. REV. 451, 460-61
(1952). While the statement may be true, individualized treatment of cases seems to be
the Court's ideal and this ideal may be more laudable than regrettable. "Each method [of
expression] tends to present its own peculiar problems." Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495, 502-3 (1952).
The opinions of the concurring and dissenting Justices have varying significance with
respect to the comic book problem. Justice Frankfurter declared that balancing of interests
is a legislative task and ought not to be disturbed by the Court. Dennis v. United States,
341 U.S. 494, 525 (1951). Adoption of this view would increase the probability that crime
comics legislation would be upheld. Justice Jackson concurred on the ground that the case
was one of conspiracy and hence one not covered by the First Amendment. Id. at 561. The
two dissenting Justices would apply the clear and present danger test more strictly than
the balance of the Court. Justice Black dissented on the ground that the conviction resulted
in prior censorship, id. at 579, while Justice Douglas observed that there was no evidence
showing a relation between the prohibited activity and the danger threatened, id. at 581.
Justice Clark did not participate in the decision.
March I955] CRIME COMICS 247
that evil ? It may be useful to consider

for purposes of discussion, though the
artificial.
Gravity.-If legislative action abridging free expression is to be
constitutional, it must be designed to curb a serious evil. It has be-
come clear that keeping the streets clean is not sufficient to justify
an infringement of free expression,78 while preventing the over-
throw of the government by force and violence is.79 Between these
extremes fall a variety of cases.80 None has dealt with the dangers
that allegedly flow from the distribution of crime and horror
comics.
Legislation regulating sale and distribution of crime and horror
comics has among its purpose the protection of society by pre-
venting juvenile crime.8' But the primary purpose of such legis-
lation is to prevent such demoralization of youth as might manifest
itself in ways that cannot be recorded by juvenile crime statistics.82
The state's interest in the moral training of its youth is a pro-
found one. Professor Chafee pointed out the effect of obscenity on
youthful minds as a reason for its suppression.83 But the state's
interest in youth may even justify restrictions of less objectionable
forms of expression than the obscene. The Commission on Free-
78. Schneider v. State, 308 U.S. 147 (1939).

79. Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Adler v. Board of Educ., 342
U.S. 485 (1952); Dennis v. United States, 341 U.S. 494 (1951).
80. The Court has held that a state may not restrict the distribution of religious pam-
phlets on the sidewalks of a company-owned town in order to protect the property rights of
the company, Marsh v. Alabama, 326 U.S. 501 (1946); that a state may not restrain a pro-
fessional union solicitor from addressing a meeting of workers in order to guard against
abuses in the "business" of union solicitation, Thomas v. Collins, 323 U.S. 516 (1945); that
a state cannot prevent door-to-door distributing of religious tracts in order to protect house-
holders' peaceful enjoyment of their homes and to prevent crimes, Martin v. City of Struth-
ers, 319 U.S. 141 (1943); and that a state cannot punish an individual for speech which stirs
the public to anger, invites dispute, brings about a condition of unrest or creates a disturb-
ance, Terminiello v. Chicago, 337 U.S. 1 (1949). But the Court has held governmental
action constitutional where an inflammatory speech threatened to cause a riot, Feiner v.
New York, 340 U.S. 315 (1951); where Congress found that there was a danger that
political strikes would disrupt interstate commerce, American Communications Ass'n v.
Douds, 339 U.S. 382 (1950); where sound trucks broadcast on the city streets in a loud
and raucous manner, Kovacs v. Cooper, 336 U.S. 77 (1949); and where, in time of war,
American participation in the war was attacked and recruiting obstructed, Schaefer v.
United States, 251 U.S. 466 (1920); Debs v. United States, 249 U.S. 211 (1919); Froh-
werk v. United States, 249 U.S. 204 (1919).
81. FEDER i.
82. "For every juvenile who actually engages in delinquent behavior-or who is caught
in delinquent behavior-there are hundreds or thousands who may have delinquent ten-
dencies or who fail in subtle and socially harmless but still dreadfully crippling ways, to
make a full and creative adjustment to life." Statement by Fillmore H. Sandford, Executive
Secretary of the American Psychological Association, quoted in SEN. REP. No. 1064, 83d
Cong., 2d Sess. 7 (1954).
83. 1 CHAFEE, GOVERNMENT AND MASS COMMUNICATIONS 212 (1947).
dom of the Press has singled out the sound training of

of the important ideals of society against which free
press must be balanced.8.
The strongest authority supporting the sufficiency
interest in the training of its youth is Prince v. Massachus
Prince was convicted for permitting a nine-year-old
Jehovah's Witnesses' publications on the streets in vio
statute prohibiting children from selling periodicals o
in a public place. The Court rejected her contention th
violated due process by invading two First Amendmen
parent's right to bring up his child in accordance with
religion, and the child's right to observe the parent's t
respect to their faith.86 Justice Rutledge, speaking for
of the Court, said that the state's interest in the "hea
rounded growth of young people into full maturity as
great enough to justify what he conceded to be an inva
if applied to adults or all persons generally.87 This inte
was asserted on behalf of every member of society, n
behalf of the children themselves.88
Although the Prince case indicates the magnitude o
interest in the well-being of its youth, there may be some
in applying the principle of this case to statutes regula
distribution of crime comics.89 The Court was carefu
that the ruling did not extend beyond the facts of the
84. Id. at 6. 85. 321 U.S. 158 (1944).

86. The defendant conceded that the restrictions might be lawful if only t
freedoms of speech and press were involved. But the majority of the Court r
idea that freedom of conscience was on a higher plane than secular freedoms. Id
87. Id. at 168-69. 88. Id. at 165.
89. Mr. Justice Jackson concurred on the theory that regulation of religious e
should be allowed where commercial activity is involved so long as the regulatio
discriminate against commercial activity which is carried on for religious purp
178. But in Murdock v. Pennsylvania, 319 U.S. 105 (1943), the Court held that di
of religious tracts for money was not a commercial enterprise. Of course, freedom
sion applies to publications sold for profit, such as newspapers and books. Lorai
Co. v. United States, 342 U.S. 143 (1951); Craig v. Harney, 331 U.S. 367 (1947
v. California, 314 U.S. 252 (1941); Grosjean v. American Press Co., 297 U.S. 2
Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 96 A.2d 47 (Ch. 1953), afl'd, 14
103 A.2d 256 (1954). And in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1
Court overruled an early case, Mutual Film Corp. v. Industrial Comm'n, 236
(1915), which excluded exhibition of motion pictures from First Amendmen
tion because the operation of a theater was a business. Yet the commercial nat
form of expression being restricted may still carry some weight in the balancin
Compare Martin v. City of Struthers, 319 U.S. 141 (1943) (ordinance restricting
mercial distribution of religious material held unconstitutional), with Breard v
Alexandria, 341 U.S. 622 (1951) (ordinance restricting commercial distribution of
material held constitutional).
90. Prince v. Massachusetts, 321 U.S. 158, 171 (1944).
stating that the state's authority over c

than over like activities of adults, Justice Rutledge added that
"[a]mong evils most appropriate for [state] action are the crip-
pling effects of child employment, more especially in public
places. .".'91 Clearly, reading objectionable comic books is unre-
lated to employment or other public activities of children. But this
distinction does not seem significant if crime comics threaten the
"well-rounded growth" of children.
Probability.-Even though the evils attributed to crime and
horror comics are serious, state regulation is not justified unless the
comics are likely to cause these evils. To date no satisfactory study
has been made of the effect that portrayals of brutality, violence,
crime and lust have on a child's mind.92 No one suggests that they
are the sole cause of juvenile delinquency and immorality. But the
extent of their influence is a disputed matter.93 To the argument
that comics provide a release for aggressive desires,9" Dr. Wertham
replied: "Is there one sentence in Freud to indicate that it is advis-
able for children to see over and over again pictures of violence and
torture ?""5 To the argument that many children who are exposed
to bad comics never become delinquent,96 another writer replied
that while some children who are exposed to polio virus do not get
poliomyelitis and while some children survive falling out of third-
story windows, exposure to polio and falling out of windows are
not good for children.97 Neither law enforcement officials nor
91. Id. at 168.

Senate Committee on the Judiciary, 84th Cong., 1st Sess. 17 (1955); FEDER i.
93. Even the possible educational value of comic books is the subject of dispute. One
writer thought that most comics retard mental development, Harker, Youth's Librarians
Can Defeat Comics, 73 LIBRARY J. 1705 (1948), while another found that comics provided
a range of reading experience equivalent to the upper elementary or even junior high school
level, Thorndike, Words and the Comics, 10 J. OF EXPERIMENTAL EDUC. 110, 113 (1941).
94. See, e.g., Cavanagh, The Comics War, 40 J. CRIM. L. & CRIMINOLOGY 28, 33
(1949).
95. Saturday Review of Literature, May 29, 1948, p. 27.
96. See, e.g., letter from Dr. Ernest Osborne, Professor of Education, Columbia Uni-
versity, in A Compilation of Information and Suggestions Submitted to the Special Senate
Committee to Investigate Organized Crime in Interstate Commerce Relative to the Incidence
of Juvenile Delinquency in the United States and the Possible Influence Thereon of So-Called
Crime Comic Books During the 5-Year Period 1945 to 1950, 81st Cong., 2d Sess. 188
(1950).
97. Reader's Digest, Nov. 1954, p. 55. Yet publisher William Gaines told the Senate
Subcommittee: "Jimmy Walker once remarked that he never knew a girl to be ruined by a
book. Nobody has ever been ruined by a comic." Hearings Before the Subcommittee to In-
vestigate juvenile Delinquency of the Senate Committee on the judiciary (Comic Books),
83d Cong., 2d Sess. 98 (1954). But at least one representative of the publishing industry
stated that the effect of brutality, sex, sadism and cruelty in children's reading matter was
"self-evident." Gleason, In Defense of Comic Books, Today's Health, Sept. 1952, p. 41.
psychiatrists and psychologists have agreed

harmful. While the National Association of
cuting Attorneys found that crime comics con
linquency and violent crimes,98 J. Edgar
juvenile delinquency would decrease "if crim
types were not readily available to children."9
atrist Dr. Reginald Steen told a New York
mittee that sadistic comics are harmful to all
Rush, Jr., Executive Assistant to the America
ciation, stated that their adverse effect is relat
Mr. Rush conceded, however, that comics migh
children who are otherwise predisposed to de
Dr. Robert H. Felix, Director of the Nationa
Health, agreed that crime and horror comi
delinquent trends in children, but pointed out
delinquents how to commit crimes since they
criminality.'03 In Dr. Wertham's opinion, p
techniques is enough to make comics a cause o
denies that children must be delinquent by p
fected by such portrayals.'04 But in almost
authorities have prefaced their remarks with
is a need for more research and study.'05
There are a few instances which lend at leas
to Senator Hendrickson's remark that "[n]ot e
conspiracy could devise a more deadly way to
and confuse our future citizens" than "tale
detail-of murder, rape, burglary, extortion
which h]alf-rotted corpses rise from their
[and] . . . [v]ampires go forth to drink the bl

99. A Compilation of Information and Suggestions Submi
Committee to Investigate Organized Crime in Interstate Comme
of juvenile Delinquency in the United States and the Possible Inf
Crime Comic Books During the 5-Year Period 1945 to 1950, 8
100. FEDER 7-8. 101. Hearings, supra note 97, at 163.
102. Ibid.
103. Id. at 1.
104. Id. at 87 (testimony of Dr. Fredric Wertham). Dr. Wertham's views have been
severely criticized as being without scientific foundation. See Thrasher, The Comics and
Delinquency: Cause or Scapegoat? J. of Educ. Sociology, Dec. 1949, pp. 195-205; Harpers,
July 1951, p. 6, col. 2. Critics have particularly objected to his use of specific instances
of comic-inspired crime without his having made a systematic study of the effect of comics.
Ibid.
105. Hearings, supra note 97, at 12, 163. See also note 92 supra.
March 1955] CRIME COMICS 25I
The following have been cited as

triggered asocial acts: A six-year-old boy wrapped himself in
a sheet and jumped from a rafter after "seeing it done in a comic
book'";107 a fourteen-year-old boy poisoned a fifty-year-old woman
after getting the idea and the poison recipe from a comic book ;108
a thirteen-year-old boy's parents came home to find his body hang-
ing in the garage with a comic at his feet depicting a hanging
body;109 two Canadian boys accused of murder and robbery said
they got the ideas for their crimes from comics;110 and three boys,
six to eight years old, hanged a boy of seven nude from a tree with
his hands tied behind him and then burned him with matches, all
according to a comic book plot.1"'
Since the fact of causal relation between crime comics and juve-
nile morals is disputed, perhaps a legislative determination ought
to prevail. A comic book bill recently introduced in the California
Legislature included the following statement:
The Legislature . . . finds that children below the age of i8 years are
of a susceptible and impressionable character and are often stimulated
by collections of pictures and stories of criminal acts, and do in fact
often commit such crimes partly because incited to do so by such publi-
cations... 112
Yet a mere recital of conclusions should not be enough to influe

the Court. If the legislative determination is to be given any ev
denciary weight, the conclusions should be based on investiga-
tion."13 If so, the resulting enactment may induce the Court to
accept the view of those authorities who believe that crime and
horror comics are a cause of juvenile immorality."1'
107. Newsweek, May 3, 1954, p. 60, col. 3.

108. Time, Oct. 4, 1948, p. 46, col. 2.
109. Ibid.
110. VEDDER, THE JUVENILE OFFENDER 87 (1954).
112. Cal. Assembly 183, 1955 Sess. For the subsequent history of this legislation, see
note 42 supra.
113. Richardson, Freedom of Expression and the Function of Courts, 65 HARV. L. REV.
1, 37 (1951).
114. For a detailed discussion of the role of judge and jury in finding the fact of causa-
tion, see Richardson, supra note 113. In the Dennis case, Chief Justice Vinson upheld Judge
Medina's instruction to the jury. Judge Medina treated the existence of all the elements of
clear and present danger as a question of law for the court. The jury's only function was
to decide whether the defendants' conduct was within the statute as construed by the court.
Dennis v. United States, 341 U.S. 494, 511-15 (1951). In upholding Judge Medina's in-
struction Chief Justice Vinson had to distinguish away language in Pierce v. United States,
252 U.S. 239, 251 (1920), and in Justice Brandeis' concurring opinion in Whitney v. Cali-
fornia, 274 U.S. 357, 379 (1927). In these cases, as in Schaefer v. United States, 251 U.S.
466, 483 (1920) (Brandeis, J., dissenting), statements were made that the causal connec-
Necessity.-The third element of the clear an

test is "necessity." The state may constitutionall
of expression only where the restriction is th
means of averting the evil. For example, a city m
the distribution of literature in order to keep the
it can accomplish the same purpose by punishing
the literature.115 If control of juvenile delinquen
objective of comic book regulation, perhaps the
rective effects of statutes dealing with juvenile of
fice. But the socially undesirable effect of crime
morals is also involved.
It is possible to combat crime comics withou
expression. Many dealers are eager to cooperat
mands that they clean up their stands. But they a
Through the device of tie-in sales the delivery
tions is conditioned upon the purchase of crime
ics. Testimony before the Subcommittee to Inv
Delinquency of the Senate Judiciary Committ
distributors"1' do not make tie-in sales to wholes
cals.'17 But there is evidence that wholesalers
pressure on dealers to display and sell their entir
threats that the dealer's allotment of legitima
desirable periodicals will be reduced;1"8 that h
tion between the utterance and the evil is a question for the jury. J
tend to support Chief Justice Vinson's view. In Schenck v. Un
(1919), Justice Holmes found a clear and present danger althoug
had not gone to the jury. Justice Holmes also felt free to dispose of
self in his dissent in Gitlow v. New York, 268 U.S. 652, 673 (1
Mr. Richardson distinguished between two determinations. R
113, at 9-12. It must be found that there is probability "inherent
that the national and international environment makes it likely t
may occur if properly stimulated. It must also be found that the ut
immediate setting may prove to be the stimulus. He then suggest
qualified than a jury only in gauging the "larger situation." Id. at
pendence of gravity, improbability and the other elements of clear
gests that the entire question of constitutionality, including such f
are necessary, must be handled by the court.
115. This suggestion was made in Schneider v. State, 308 U.
the Court's primary concern was whether the evil legislated against w
justify restricting freedom of expression.
116. A comic book distributor works closely with his publisher o
The distributor finances publication and maintains sales forces to
some instances the distributor is also the publisher. The publishe
wholesalers, who distribute them to dealers, who retail them. Int
committee to Investigate Juvenile Delinquency to the Senate Com
84th Cong., 1st Sess. 5-6 (1955).
117. Hearings Before the Subcommittee to Investigate Juveni
Senate Committee on the judiciary (Comic Books), 83d Cong., 2d
118. Id. at 186, 210, 217-18, 234.
delay in receiving credits for returne

lose his franchise altogether.'20 On
he complained to local government o
allotment of other periodicals because of his refusal to handle
comics, he was swamped with consignments of unwanted maga-
zines."2' In New York City these conditions existed to such an
extent that William Richter, counsel for the Newsdealers' Associa-
tion of Greater New York, announced plans for establishing a co-
operative distributing company to "correct industry abuses" in the
distribution and sale of horror and crime comics.'22 The New York
Newsdealers' Association, which represents more than i,ooo news-
stands and stationery stores,'23 will refuse to handle "lewd, horror
or indecent magazines that may fall into the hands of juveniles."'24
Four states have already prohibited tie-in sales.'25 The laws enacted
meet the comic book problem by allowing dealers to respond freely
to public opinion. Their effectiveness will depend upon the pub-
lic's awareness of the problem.
Education of the public may be an alternative to legislation
abridging free expression. Organizations have been active through-
out the nation.'26 A citizens' committee in St. Paul, Minnesota,
119. Id. at 217. Such a delay is a hardship for a small dealer who has much of his
money tied up in these magazines. Ibid.
120. Id. at 210. Some witnesses denied that tie-ins were common. Id. at 73, 231-33.
121. Id.at234.
122. N.Y. Times, June 4, 1954, p. 26, col. 2.
123. Hearings, supra note 117, at 189.
124. N.Y. Times, June 4, 1954, p. 26, col. 2.
125. Cal. Stat. 1955, c. 214; IDAHO CODE ANN. ? 48-118 (1953 Supp.); N.J. STAT.
ANN. tit. 2A, ? 115-3.1 (1954 Supp.); N.Y. PEN. LAW ? 1141-b.
Such tie-in arrangements may also be vulnerable under the antitrust laws. Section 3
of the Clayton Act, 38 STAT. 731 (1914), 15 U.S.C. ? 14 (1952), may cover these arrange-
ments where they are made possible by the seller's dominant position in supplying the
"tying" products, United Shoe Mach. Corp. v. United States, 258 U.S. 451 (1922), or
where the arrangements result in restraining competition as to the "tied" products, Inter-
national Business Mach. Corp. v. United States, 298 U.S. 131 (1936). However, Section 3
of the Clayton Act applies to sales and does not cover distributions by consignment. FTC v.
Curtis Publishing Co., 260 U.S. 568 (1923).
Section 1 of the Sherman Act, 26 STAT. 209 (1890), as amended, 50 STAT. 693 (1937),
15 U.S.C. ? 1, might cover such tie-in arrangements, but apparently only if the seller is in
a dominant position as a supplier of the "tying" products and competition as to the "tied"
products is effectively restrained. Times-Picayune Publishing Co. v. United States, 345
U.S. 594 (1953).
The Senate Subcommittee to Investigate Juvenile Delinquency has referred the pro
lem to the Attorney General for possible action in the antitrust field. Inteim Report
the Subcommittee to Investigate ItJvenile Delinquency to the Senate Committee on th
Judiciary, 84th Cong., 1st Sess. 24 (1955).
126. Among those who have expressed concern over the comics problem are the
American Legion, the General Federation of Women's Clubs, the Amvets, the Nationa
Council of Juvenile Court Judges, the National Organization for Decent Literature, and th
California Congress of Parents and Teachers. FEDER 11-14.
254 STANFORD LAW REVIEW [Vol. 7: Page:237
compiled a list of what it considered "best buys"

And in Cincinnati, Ohio, a Committee on Evaluation of Comic
Books evaluated the 386 comic books available and placed them in
categories of acceptability.'28 Such lists not only serve to educate
the public,'29 but also are useful to comic book dealers. Many
dealers are grateful for such assistance since they do not have time
to evaluate comics themselves.'"0
Although there has also been some response to public pressure at
the distributors' level,13' public opinion has had a more telling effect
on publishers. William Gaines, whose publishing firm originated
horror comics,'"2 dropped three horror and two suspense books
from his line."'8 More significant, in September 1954, publishers
formed a voluntary policing organization, the Comics Magazine
Association of America, Inc.'"4 The CMAA purports to be com-
posed of more than eighty-five percent of the nation's comics mag-
azine publishers.'85 The members unanimously adopted a code
specifically prohibiting portrayal of a wide range of subjects.'36
Former New York City Magistrate Charles F. Murphy was named
Code Administrator.'37 A standard procedure for censorship is
followed. All comic strips are submitted to Judge Murphy and his
staff while still in the drawing-board stage. They are examined for
violations of the code and returned to the publisher for correc-
fion.l38
127. 66 CHRISTIAN CENTURY 1199 (1949).

128. Committee on Evaluation of Comic Books, An Evaluation of Comic Books,
April 1954.
129. The fact that parents have become aroused may account for recent increases in
sales of non-horror comic books. San Francisco Chronicle, Oct. 17, 1954, p. 1, col. 2.
Senate Committee on the judiciary, 84th Cong., Ist Sess. 27 (1955); 66 CHRISTIAN CEN-
TURY 1200 (1949).
131. San Francisco Examiner, Oct. 10, 1954, p. 1, col. 3. Action has been taken in
Sacramento, California, San Francisco Chronicle, June 16, 1954, p. 2, col. 1; Santa Barbara,
California, N.Y. Times, Oct. 10, 1954, p. 68, col. 1; South Bend, Indiana, Time, July 12,
1948, p. 62, col. 3.
132. Hearings Before the Subcommittee to Investigate juvenile Delinquency of the
Senate Committee on the Judiciary (Comic Books), 83d Cong., 2d Sess. 98 (1954).
134. FEDER 16.
135. 24 out of 27. Comics Magazine Association of America, Press Release, Sept. 16,
1954.
136. Comics Magazine Association of America, Press Release, Oct. 27, 1954. See
p. 259 infra for specific provisions.
137. Comics Magazine Association of America, Press Release, Oct. 27, 1954. Judge
Murphy served on the bench for nine years. He was founder and president of Teen Plan,
Inc., an organization to help teen-agers find suitable careers. He also founded and pro-
duced "Youth Talks It Over," a weekly radio program on which high school students dis-
cussed their problems with the judge. Ibid.
138. Ibid.
However, there are reasons to doubt that

eliminate crime and horror comics. Individu
and distributors is piecemeal, and many distrib
buck-"policy is determined in New York.
CMAA, even if sincerely motivated, may not s
gram is purely voluntary and any publisher ca
subject only to expulsion from the Association
tary organization composed of 35 publishers
Comics Magazine Publishers, was establishe
perished.'43 Another reason for doubting the s
is that some established and many "fly-by-n
not members.'4' The independent publishers
at all, only so long as the wind blows. The Cou
uphold a legislature's determination that some s
sary" to avert the evils at least partially attrib
horror comics.
OVERBROADNESS
Assuming that some infringement upon free

would be constitutional, there may be a limit t
may go. If a statute regulating expression ap
that cannot constitutionally be regulated as wel
be, it is invalid as to all.'45 The objection to th
statute can be raised even by one whose expr

140. Dr. Wertham has no faith in the new code. Wertham
Saturday Review, April 9, 1955, p. 11, col. 1. He recently to
legislative committee that comics had not improved under the co
that "you can't build Rome in a day." N.Y. Times, Feb. 5, 1955
141. Comics Magazine Association of America, Press Release
142. 151 PUBLISHERS' WEEKLY 2941 (1947).
143. Hearings Before the Subcommittee to Investigate juven
Senate Committee on the Judiciary (Comic Books), 83d Cong.,
144. San Francisco Examiner, Oct. 10, 1954, p. 1, col. 3. One
is Mr. William Gaines, Comics Magazine Association of Americ
1954, who claims to have the largest percentage of sales in indepe
ings, supra note 143, at 98. Another publisher not included
Comics Magazine Association of America, Press Release, Sept. 1
that it does not publish crime or horror magazines. Newsweek
N.Y. Times, Sept. 27, 1954, p. 29, col. 2. But the Cincinnati Co
Comic Books found "some objection" to at least two of their p
Comics" and "Tonto"), and found another "objectionable"
mittee on Evaluation of Comic Books, An Evaluation of Comic
145. Terminiello v. Chicago, 337 U.S. 1 (1949); Thornhill
(1940); Lovell v. City of Griffin, 303 U.S. 444 (1938); Herndo
(1937).
146. Thornhill v. Alabama, supra note 145.
The argument can be made that prohibiting all sa

tionable crime comics would be too great an infring
objectionable features of these comics may only jus
sales to children below a specified age. In Prince v. M
where a statute regulating the activities of childr
Justice Rutledge remarked: "Concededly a statut
identical in terms . . . except that it is applicable
persons generally, would be invalid.""9
In fact, most comics legislation does only prohibi
to children under the age of eighteen,'50 or to min
ordinances prohibit distribution of crime comics to
Such absolute restrictions might be justified by the
only children buy comics and therefore an absolu
would have no greater effect than one limited to
comics are not sold only to children; one study f
fourth to one-third of comic book sales are made to a
The definitions of crime comics in some statutes
nerable to objection for overbroadness. An ordi
Haute, Indiana, prohibited the sale and distribution
"which . . . depict horrors, robberies, murders or
lewd."'54 An ordinance proposed in Cleveland, Oh
alize anyone who "sells . . . or shows to a minor
phlet, magazine, newspaper, story paper, comic b
paper devoted to the publication or principally mad
inal news. . ..155 On its face, such language seem
publications other than comics that demoralize ch
otherwise overbroad statute can be cured by construc
147. On the problem of magnitude of infringement, see Note, Curre

Governmental Invasion of First Amendment Freedoms, 13 OHIO S
(1952).
148. 321 U.S. 158 (1944).
149. Id.at 167.
150. See, e.g., ordinances in Riverside, California (proposed); East Baton Rouge,
Louisiana; New Orleans, Louisiana (seventeen years of age); Houston, Texas. These
ordinances are collected in FEDER 48-49.
151. See, e.g., ordinances in Oklahoma City, Oklahoma, Ordinance No. 7371, Sept. 7,
1954; St. Cloud, Minnesota (referred to in FEDER 51); Tacoma, Washington (referred to in
United States Conference of Mayors, Research Rep. No. 298, Nov. 22, 1948).
152. See, e.g., ordinances in Terre Haute, Indiana (referred to in United States Con-
ference of Mayors, Research Rep. No. 298, Nov. 22, 1948); Youngstown, Ohio (re-
ferred to in FEDER 52) (heavier penalties provided when minors are involved).
153. FEDER 2.
154. United States Conference of Mayors, Research Rep. No. 298, Nov. 22, 1948.
155. Ibid.
156. Beauharnais v. Illinois, 343 U.S. 250 (1952). In the Dennis case Judge Hand
made the startling suggestion that overbroadness could be cured by the use of a separability
VAGUENESS
A draftsman of a comic book statute must not only av

stitutional restriction of free expression, but he must al
the problem of vagueness.157 Two major functions of a p
are to give the prospective violator notice of the prohibi
and to provide an objective guide for adjudication.158 If
does not fulfill these requirements, it violates the D
Clause of the Fourteenth Amendment.159 And on a
occasion the Supreme Court has intimated that it will im
ticularly strict standards of certainty where free expre
volved.180
The oft-recited formula for determining whether a statute is
unconstitutionally vague is whether "men of common intelligence
must necessarily guess as to its meaning."'6' But analysis of the
way in which the Supreme Court has applied the vagueness doc-
trine has led commentators to make two suggestions: (i) A statute
is not vague when it gives the potential defendant notice to seek
legal assistance and provides the lawyer consulted with standards
he understands.162 (2) The current social context in which words
are used determines whether they have sufficient content to
withstand a challenge for vagueness.163 Thus statutory language
clause. United States v. Dennis, 183 F.2d 201, 214 (2d Cir. 1950), af'd, 341 U.S. 494
(1951). If so, overbroadness as a constitutional objection could easily be circumvented.
Some comic book ordinances do provide that if their application to any person or circum-
stance is held invalid, their application to other persons or circumstances is not affected.
See, e.g., ordinances in Terre Haute, Indiana, and New York City, New York (proposed),
referred to in United States Conference of Mayors, Research Rep. No. 298, Nov. 22, 1948.
See also Los Angeles County, California, Ordinance No. 5201, ? 4, Sept. 21, 1948; Okla-
homa City, Oklahoma, Ordinance No. 7371, ? 4, Sept. 7, 1954.
157. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Winters v. New
York, 333 U.S. 507 (1948).
158. Note, Due Process Requirements of Definiteness in Statutes, 62 HARV. L. REV.
77, 77-78 (1948).
159. For a history of the development of this doctrine and a criticism of it, see Note,
Void for Vagueness: An Escape from Statutory Interpretation, 23 IND. L.J. 272 (1948).
160. Winters v. New York, 333 U.S. 507,517 (1948).
161. Jordan v. De George, 341 U.S. 223, 231-32 (1951); Winters v. New York, supra
note 160, at 518; Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
It has been pointed out that the Court has required less definiteness than this test would
seem to indicate; statutes which contain common-law terms, the meaning of which may not
be clear to an intelligent layman, have been upheld as giving sufficient notice. Id. at 392;
Note, Due Process Requirements of Definiteness in Statutes, 62 HARV. L. REV. 77, 79
(1948).
162. Id. at 80.
163. Curtis, Review and Majority Rule in SUPREME COURT AND SUPREME LAW 170,
195-96 (Cahn ed. 1954).
is not too vague if the words have developed a co

context through usage.'64 Vagueness can also be c
construction of the statute.'65
Some comic book ordinances seek to avoid prob
ness by punishing the depiction of specific acts. T
County ordinance made it a misdemeanor to fu
under eighteen with any publication in which the
featured an account of crime and which depicts t
the crimes of arson, assault with caustic chemica
deadly weapon, burglary, kidnaping, mayhem
robbery, theft or voluntary manslaughter.'66 Su
of specific criminal acts whose depiction is not a
popular device to meet the objection to vaguen
legislation.'67 A proposed ordinance in New Orlea
further and adds a glossary reciting the eleme
listed.'68 But even so specific a list of crimes has i
ordinances are in danger of being declared too
seem to cover some comics which do not tend
youth.'69 More important, these statutes are defec
restricted-comics may be objectionable even th
portray crimes.
Draftsmen might attempt to remedy this last d
more comprehensive definitions of prohibited de
vagueness would become a real danger. For examp
eled a statute on the code of the Comics Magaz
164. See, e.g., Boyce Motor Lines v. United States, 342 U.S. 337
v. Illinois, 343 U.S. 250 (1952); Jordan v. De George, 341 U.S
Binford, 286 U.S. 374 (1932); Omaechevarria v. Idaho, 246 U.S.
Process Regquirements of Definiteness in Statutes, 62 HARV. L. REV
165. See, e.g., Beauharnais v. Illinois, supra note 164; Fox v.
273 (1915). Even the state court's construction may be too vagu
New York, 333 U.S. 507, 514 (1948).
166. Los Angeles County, California, Ordinance No. 5201, Sept
nance was held to violate the Federal Constitution by two out of thr
late Department of the Los Angeles County Superior Court. People
Dec. 27, 1949. One judge objected on the ground of overbroadn
vagueness.
167. See, e.g., Cal. Senate 326, 1955 Sess.; Cal. Assembly 183,
ordinance of New Orleans, Louisiana, referred to in United States
Research Rep. No. 298, Nov. 22, 1948. For the fate of the Calif
supra.
168. United States Conference of Mayors, Research Rep. No. 298, Nov. 22, 1948.
169. Some lawmakers have attempted to meet the objection of overbroadness b
enacting legislation that does not apply to accounts and illustrations of crime which
part of the general dissemination of news. See Cal. Senate 326, 1955 Sess.; Cal. Assemb
323, 1955 Sess.; Cal. Assembly 183, 1955 Sess.; proposed ordinance of Riverside, Californ
referred to in FEDER 43. For the fate of the California bills, see note 42 supra.
America, a lawyer or judge would have t

like the following:
Scenes of excessive violence shall be prohibite
excessive and unnecessary knife and gun play
gruesome crime shall be eliminated. . . . All lurid, unsavory, gruesome
illustrations shall be eliminated. . . . Suggestive and salacious illustra-
tion or suggestive posture is unacceptable.'70
And even so comprehensive a list may fail to encompass the por-

trayals that might characterize objectionable comics yet to be pub-
lished.
Apparently some legislators recognize that statutes condemning
specific depictions may not encompass all objectionable comics and
still may fail to avoid problems of vagueness. These legislators
would define crime comics in terms of the effect they have on their
readers. A Salinas, California, ordinance defines them as publica-
tions whose primary theme is the depiction of felonies "in such a
style as would incite or intend [sic] to incite the commission of a
similar act by a minor.... "71 And Oklahoma City prohibits sale
or distribution of a publication "tending to incite minors to violent,
depraved, or immoral acts, or [which] manifestly tends to the cor-
ruption of the morals of minors, or which manifestly tends to incite
minors to disregard the law of the land."'72 Although these statutes
are designed to define what is wrong with comic books, they are
also likely to raise acute problems of vagueness.
There is one way the draftsman can purge vagueness from a
statute. According to Judge Hand's opinion in the Dennis case
vagueness may be cured if the statute provides that conduct is crim-
inal only if the violator had a "specific" intent or, in Judge Hand's
words, knowledge "that what he intends is wrong."'73 Since crime
comics legislation is directed at publications which demoralize the
child-a category not easily defined in precise terms-a provision
requiring specific intent might be added as a precaution. But a
mere intent to publish comic books is not enough, even if the books
170. Code of the Comics Magazine Association of America. 171. FEDER 41.
172. Oklahoma City, Oklahoma, Ordinance No. 7371, Sept. 27, 1954.
173. United States v. Dennis, 183 F.2d 201, 215 (2d Cir. 1950), af'd, 341 U.S. 494
(1951). Judge Hand's use of the word "wrong" instead of "unlawful" was apparently
dictated by the peculiar mental element required in the relevant section of the Smith Act.
The statute is directed at "Whoever organizes . . . any society, group, or assembly of
persons who teach, advocate, or encourage the overthrow of destruction of . . . govern-
ment by force or violence; . . . knowing the purpoxes thereof.... 18 U.S.C. ? 2385
(1952). [Emphasis added.]
published should be found objectionable under th

some censorship statutes speak in terms of the e
will have, a specific intent provision could requir
intent to publish comics that "corrupt morals" or "incite to
crime."'74 Even the most callous of comic book publishers would
probably not desire his publications to corrupt or incite. But a pub-
lisher may have the requisite "specific intent" if he is aware of the
objectionable effects of his comics yet recklessly chooses to leave
them unaltered.'75 However, awareness is difficult to prove; and a
specific intent provision would jeopardize convictions. Perhaps the
legislator's only hope of saving his statute is the possibility that the
Supreme Court might tolerate a certain amount of imprecision if
convinced that the legislation was a careful attempt to prevent a
serious threat to the community.176
CONCLUSION
It is conceivable that the Supreme Court will uphold legislation

restricting sale and distribution of crime comics if a serious enough
threat to the morals of the community is shown. But the Court
should not be asked to weigh illusory evils. Judge Learned Hand
once pointed out the dangers of relying on the courts to protect
individual liberties.'77 He might have added that judicial approval
of legislation neither makes it wise nor guarantees that the liber-
ties infringed are adequately protected. The nature and extent
of the evils threatened by crime comics, though much discussed,
have not yet been carefully analyzed. More objective investigations
of the comic book problem should be made before legislatures are
moved by public outcry to proceed against comics. Do they pose so
great a problem that another inroad on fundamental freedoms is
warranted ?
174. For a more thorough discussion of specific intent, see Note, State Police, Unconsti-
tutionally Obtained Evidence and Section 242 of the Civil Rights Statute, 7 STAN. L. REV.
76, 87-88 (1954).
175. See Screws v. United States, 325 U.S. 91, 106 (1945).
176. This approach was taken by Justice Frankfurter in his dissent in Winters v. New
York, 333 U.S. 507, 525-26, 533 (1948).
177. HAND, THE SPIRIT OF LIBERTY 189-90 (2d ed., Dilliard, 1953).

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Stanford Law Review

Crime Comics and the Constitution

at least two states'9 have reacted with some type

After thus stating what seems to b

they were intended to entertain as well as infor

Thus the fact that crime and horror comics "do n

32. 333 U.S. 507 (1948). 33. Id.at510.

Judge Learned Hand criticized

corrupt the morals of their readers.46 Perhaps c

If crime and horror comics are not obscene and

46. Interim Report of the Subcommittee to Investigate juvenile Delinquency to the

Restriction Prior to Publication. Whatever leeway a legislature

and booksellers prefer to avoid the trouble an

57. Id. at 220. 58. Ibid. 59. Id.at 219.

It is now recognized that "clear and pr

Even though the gravity of the evil discounted by its improbability

version of the clear and present danger test, ther

that evil ? It may be useful to consider

78. Schneider v. State, 308 U.S. 147 (1939).

dom of the Press has singled out the sound training of

84. Id. at 6. 85. 321 U.S. 158 (1944).

stating that the state's authority over c

91. Id. at 168.

psychiatrists and psychologists have agreed

98. San Francisco Chronicle, Oct. 1, 1954, p. 10, col. 3.

The following have been cited as

Yet a mere recital of conclusions should not be enough to influe

107. Newsweek, May 3, 1954, p. 60, col. 3.

Necessity.-The third element of the clear an

delay in receiving credits for returne

compiled a list of what it considered "best buys"

127. 66 CHRISTIAN CENTURY 1199 (1949).

However, there are reasons to doubt that

Assuming that some infringement upon free

139. San Francisco Chronicle, Oct. 17, 1954, p. 1, col. 2.

The argument can be made that prohibiting all sa

147. On the problem of magnitude of infringement, see Note, Curre

A draftsman of a comic book statute must not only av

is not too vague if the words have developed a co

America, a lawyer or judge would have t

And even so comprehensive a list may fail to encompass the por-

published should be found objectionable under th

It is conceivable that the Supreme Court will uphold legislation

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