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Newsmaker Interview: Charles Brownstein
posted April 30, 2008
 

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With a big win announced in the long-running Gordon Lee case announced at New York Comic-Con several days ago, and a bonanza of fundraising and publicity opportunities over that same period, I wanted to talk to Comic Book Legal Defense Fund Executive Director Charles Brownstein about his group's recent string of successes. I caught him between the end of NYCC and the beginning of Stumptown.

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TOM SPURGEON: Tell me how you found out about the Lee win and what you felt as you both heard it and had the opportunity to tell other people. That was probably the biggest win of your tenure.

CHARLES BROWNSTEIN: It felt terrific to know that Gordon's ordeal was over, and that all of the financial, intellectual, and emotional investment that the comics world put into defending him had paid off.

I probably should have known it would happen this way. In the six years I've been at the Fund, major case developments always tend to happen when I'm away at a convention. This was no exception.

I received an email at about 4:00 on Friday afternoon from Cory Begner, one of our lead counsel, telling us that Patterson's office was finally pushing the dismissal through. My initial feeling was, "Great news!" At that moment I was in a green room at the Javits getting the final logistics sorted for our VIP Reception with Neil Gaiman. I interrupted Neil's meeting and said, "Sir, I think you want to read this," and handed him the phone with the message on it. He read it and said, "Great news, can we announce it tonight?" And then it was another piece of logistics.

So while we were sorting the line, getting the VIP gift bags delivered, nailing down the last of the A/V, saying no to various people trying to sneak into Neil's green room, getting badges to approved VIPs, and all the other detail oriented things that happen at a large event, I was also running around calling the lawyers to get verification that Judge Salmon had actually signed the Nolle Prosse (dismissal) documents and we were good to announce. At around 4:50 or so I got the call verifying that we could announce. Then, maybe a minute later, Stan Lee walked into the green room to wait for his panel to start and our photographer, Steve Prue, called me over to shoot a pic with Stan and Neil. The expression on my face in that shot probably best sums up how I felt when I heard the final word and knew we could announce it to the world. That was truly one of the most awesome and surreal moments of my tenure.

SPURGEON: Why did the Lee case resolve when it did? Did you expect it to be over so soon?

BROWNSTEIN: I don't know that "so soon" is the right phrase in the context of the 3 and a half year struggle this case represents. But, as I indicated in the PR we released yesterday, I did know that we were close to the end, I just didn't know when it would actually happen.

The sequence of events that led to this win really began moments after the mistrial. Gordon, his wife & mother, Alan & Cory Begner, Paul Cadle, and I went back to the hotel after court and started dissecting the day's events. After a healthy amount of venting, and much analysis, we decided that a misconduct motion should be brought, and that it should cover everything up to and including the mistrial. Cory went to work on it, and filed in December. And it is a work of savage legal beauty. Cory is one of the best legal writers I've ever known, and she really earned her pay on this one.

The day after the mistrial, Patterson was quoted in the Rome News Tribune, vowing to put this case on the next trial calendar. We knew the next misdemeanor trial calendar was to be in February. So, we submitted the misconduct motion, and in January I started getting our team of experts prepared to mobilize again. As the clock ticked closer, there was no move from the prosecutors to put this case on the docket, so I kept our team on standby. Eventually, the misdemeanor calendar came and went. The DAs offered no response to our motion, and never put us on the docket.

Shortly after the calendar passed they contacted Paul Cadle and said they'd be willing to drop the case if Gordon wrote a letter of apology. Gordon was willing to do that from the start, and frankly, we've been saying all along that this case should have been solved with an apology and not a prosecution, so we didn't object. Gordon submitted his apology letter and we waited for Patterson to drop the case. Weeks went by without response and it was making everyone a bit edgy. So, last week the Begners sent a letter to Patterson requesting that she honor her end of this agreement, and dismiss the case before we had to go to court to seek relief. On Friday she had a conversation with Alan Begner and finally did authorize the charges to be dismissed.

So, it resolved when it did, because we felt that Patterson had waited long enough to honor her end of the agreement. I didn't expect it to be over last Friday, but I did expect that it would be over within this period of time. And, just looking at the topsy-turvy history of this case, I also was prepared for the agreement to fall through, in which case we'd have pushed the misconduct motion into court this summer during the peak of Patterson's re-election campaign.

SPURGEON: Is everything settled now with the Lee case from your end? Are there still administrative tasks to be done?

BROWNSTEIN: There are still a few invoices that need to be paid, but for the most part it's all done.

SPURGEON: Is there a review process by which you find out the total expenditure and/or go through a case to analyze the strategies that worked and the strategies that didn't?

BROWNSTEIN: We keep good records and have the total expenses to date at any given time. Of course, I'm writing you while I'm on an airplane to Portland for the Stumptown Festival, so I can't give you the amount to the penny, but I can tell you it's in excess of $100,000. In terms of strategy, we've been doing post-mortems every step of the way with counsel. I try to be as hands-on as is useful with counsel, so always have a good sense of where we are in the case. I think that what worked can be boiled down to three factors:
1) We hired the best attorneys for the case. I've always seen it as the CBLDF's job to find the best counsel for a case and to go out and find the money that they need to do their jobs. For this case, we literally could have done no better than Alan & Cory Begner and Paul Cadle.

2) Our lawyers had access to terrific experts. Our legal team had access to pioneers including Burt Joseph, our retained counsel, and Mike Bamberger, Media Coalition's counsel, who have waged the cases that set the precedents in harmful to minors law. We also had access to tremendous educators and creators who were willing to testify and provide background. At various points we've had John Lowe, Scott McCloud, James Sturm, Nick Bertozzi, and Chris Staros on point to testify when needed. And throughout the process, I brought the institutional knowledge of this sort of case to the table when working strategy with our team.

3) We had the money to do the work. Though there was always a bit of message board dissent about this case, we were fortunate to have a steady flow of donations to be able to pay the legal bills as they came in. And while I keep a tight watch on how much things cost, there was never a point where counsel wanted to perform work and we were unable to let them do so because the ready cash wasn't there for it. If donations weren't there, that may not have been true, especially when we were forced to go completely back to square one at the midpoint of the case.
SPURGEON: How did Gordon take the news? How did his business do throughout this ordeal? Do you know if he's back up to where he was before all this happened?

BROWNSTEIN: I called Gordon and asked, and here's what he told me:

"When I finally got the phone call from Paul [Cadle] I was stunned. Finally. It didn't sink in until Saturday that it is finally over."

His business did suffer, and there were noticeable dips after articles appeared in the newspaper characterizing the book as pornographic. That happened almost every time this case was reported on over these last three and a half years. He told me that this made it very hard to cultivate new business.

He told me that business is still down,"but we're hoping as the news hits and it sinks in that we were telling people the truth for the last three and a half years that things turn around."

SPURGEON: Do you think there will be a chilling effect on this kind of case because of the dismissal and the way that popular local opinion began to turn against the prosecution, or do you think this might be the case where the harassment of a case being pressed in this matter might be seen as an effective and useful political tool in the future?

BROWNSTEIN: I don't think I can venture an opinion either way. History shows us that sole proprietor comics retailers are easy targets for prosecution, and I think they will always be, because they just don't have the resources to scare away a prosecutor.

That said, I do hope that as news gets out about this case that prosecutors thinking of going after a comic store recognize that while the shopkeeper may not have the resources, his industry has an organization whose job is to protect people in those circumstances. And that this organization gets the best defense team and wages a very aggressive fight.

It looked to a lot of people that Patterson's office was trying to spend us into folding. In the end, we weren't the ones who blinked, and if we went to trial, I'm confident we would have won. I think it's good for comics that the CBLDF is in that position, and I hope that can help discourage future prosecutions of this nature. But I wouldn't hold my breath.

SPURGEON: Otherwise, how was your NYCC?

BROWNSTEIN: It was great. It really was the best of the New York Comic Cons. Reed did a fantastic job organizing the show. They brought the people in, and they wanted to spend money on comics. The crowds really couldn't have been nicer or more engaged. I met a lot of supporters who expressed congratulations on winning Gordon's case, and whose congratulations I passed along to Gordon and our team. My crew did a really terrific job of running our booth and the education table where we co-presented the ADL's exhibit of Will Eisner's The Plot. All of our events came off as planned, and were a lot of fun for the folks attending. We were profiled in the New York Post and New York Times on the opening day of the show. And we won the Georgia case. It really couldn't have been a better convention.

SPURGEON: Can you quantify or perhaps more explicitly qualify what major news organization coverage of a CBLDF really means for the Fund beyond the fact that it's just nice to have that kind of coverage?

BROWNSTEIN: It moves the needle towards greater visibility, which translates to greater mainstream awareness, respectability, and, ultimately, support. The Times & Post articles brought a lot of people by our booths and to our programs to learn more and drop some coins in the jar. I think we saw a similar phenomenon when Y: The Last Party was picked up by all the news outlets that covered that. When people see that there is a professional organization dedicated to defending and advancing the growth of comics, especially when they have a love for free expression or comics, they want to help support it.

SPURGEON: Can you provide some detail beyond a general appraisal that might give us some understanding of how your weekend's fund raising events went?

BROWNSTEIN: I don't have final numbers, but inclusive, our week's events are projected to gross around $40,000. That represents about $17,000 in donations from merchandise premiums & membership, about $19,000 from the Neil Gaiman events, and $4,000 from our pre-convention events. Our expenses are probably going to come in around $10,000, which represents venue rental, catering, guest accommodations, event A/V, load-in and load-out, transportation, drayage, furniture, and some printing costs. That's a good week. It's about half to two-thirds of what we typically gross at San Diego, which says a lot about how quickly New York Con has become a substantial presence. Even removing the Gaiman events and our New York Comics Week run up events, this show beat our performance at all previous New York Comic Cons and is solidly our #2 event of the year..

The other thing that came out of this weekend was an awful lot of new fundraising opportunity. At least one awesome new event for May came out of it. I hope to nail all the details down on that event to announce by the end of next week, but it involves hosting a book premiere for one of the most influential writers of the moment. We also gathered a really cool auction of collaborative original art by Neil Gaiman & about a dozen other artists. There's a Jeffrey Brown/Neil Gaiman jam piece in there that may be the best piece of art I've ever seen Jeff produce. So, a lot of good future business was accomplished, which, now that I have such an incredibly good staff, is where I'm spending a lot of my time when I'm onsite at conventions.

SPURGEON: How's the state of the Fund resources right now, post-Lee? Could you handle another case right now? Could you handle two at a time?

BROWNSTEIN: We have enough money in the reserve fund to wage one straightforward case. Two cases or a complicated PROTECT ACT case could probably clean that out if donations slowed down.

What really makes me lose sleep is the prospect of getting a case under the PROTECT Act's horrifying provisions equating drawings of teen and juvenile sexuality with actual child pornography. I've seen a couple of convictions for anime and manga that was ruled to be child porn. These were dirty people who also had real child porn, and who deserved their convictions for that material, not for repugnant art. There's a difference between photographic evidence of a crime and drawings.

Those are the cases where we really need the community to stay firm in their support of the First Amendment. I think a lot of the content in the sexually oriented manga is pretty repugnant, but it's lines on paper. The thing that raises my ire about PROTECT and the current slate of child pornography laws is that in attempting to create stronger resources against sexual predators, they create categories of thought crime. Child pornography is photographic evidence of a crime. To lower that bar to include dirty drawings and uncomfortable, if not repugnant, ideas muddies the waters in a way that disrespects the severity of the crime, and the victims of it.

Those cases also frighten me, because the very nature of the content is such that the case will be unpopular. And the logistics of child porn laws determine that it is illegal to possess the images in question, so if a yaoi title, for instance, were to be the cause of such a prosecution, the lawyers and our staff would run a risk possessing the title in question as part of our defense evidence. Yet, if it's just lines on paper, no matter how revolting, it needs to be defended.

All of this stuff is complicated by the fact that at least one of the manga ratings systems appears to be inconsistent with several state harmful to minors statutes, and throws out the artistic merit prong of the Miller test with its definition of "fan service." So, those cases will be costly, and unpopular if they happen. But if you turn your back on MPD Psycho or Berzerk then you are more likely to lose the fight when they come for A Child's Life and Awkward.

SPURGEON: You've been there a while now, Charles. How much of our recent strength do you owe to the continuity you've been able to provide the Fund?

BROWNSTEIN: I'm the product of a Jewish and Catholic marriage, so I do poorly when asked to publicly identify my own strengths. But I think it's fair to say that the fact that I have six years of experience at the Fund – the longest tenure of any Executive Director – means that I was able to wage a case from start to finish, and to offer counsel an uninterrupted institutional memory for this sort of work. I also think that the length of my tenure has allowed the Fund to move the needle into new areas of fundraising and education, because we didn't need to go back to start with a new ED. Lord knows, it took me at least a year to figure out how our machine worked, and another two to make it work better. It's really only in the last two years that we've really been able to execute the new areas of fundraising and mission work that we set out to perform when we had our last Board summit in 2004.

imageI think the biggest reason for that is that I have a great staff. For the first 3 and a half years that I was at the Fund, I was the only full time employee, and I had part time staff for the home office work. Which meant that I spent about 20 weekends a year at conventions bringing in the money we needed to do the work, while the home office staff sorted the money, cut the bills, and kept the mail order going out properly. When I was able to hire Greg Thompson as our Deputy Director in early 2006, and was able to promote Elizabeth Schreck to being our part-time Fundraising Manager last fall, the Fund at last had a staff that could divide up the labor so we could do even more work. Greg & Elizabeth took a lot of the road and merchandising fundraising off of my plate (thank goodness), which frees up my time to do more in the way of event and business development fundraising, and to work seriously on teambuilding for larger education work. Which I am grateful for, because that's the kind of work I prefer doing. The Fund has gone from functionally having an Executive Director who serves as some sort of administrative OMAC, which was true of every ED from Susan Alston up to me, to having a small, but strong team. And we're a better organization for it.

SPURGEON: Is it easier to run Fund activities when participating in them has a perceivable publicity or community benefit to those who choose to do so? Is there anything cynical we can say about the nature of some creators' participation now as opposed to when things were tougher?

BROWNSTEIN: Sure, it's easier to hold successful events when those events have positive momentum. We're fortunate that just about every party or reading or speaking event we've held in the past year (that is, since we really made them a priority) has been met with positive turnout and publicity. But I think those events are successful, because they are undertaken with two sincere agendas: 1) Educate about the power of free expression by celebrating free expression, and 2) Foster community amongst comics professionals, practitioners, and readers. CBLDF events aren't designed to sell a copy of a book, they're designed to gather the community around our shared love of comics and free speech.

I don't have anything cynical to say about the support we get from the author and business communities. The truth is that all of our supporters, and supporting businesses, give to the Fund first and foremost because they believe in the work we do on their behalf.

But I also operate under the understanding that what we do is protect the First Amendment rights that the comics field depends upon to do business. And there's a certain amount of idealism that is entailed in that, but it's coupled with a realism that without the CBLDF, a lot of the work that these entities rely upon to make a living would have a harder time existing.

To me, fundraising is about finding the win/win/win. It needs to be good for the organization supported; good for the company or author leading the community into supporting the cause; and good for the individuals gathering around both. It's great to receive big checks, but it's better when those big checks have a positive net effect for everyone involved.

SPURGEON: What's the status on your various shared brief responsibilities and other Fund involvements on an advocacy, brief-filing basis?

BROWNSTEIN: Utah's Harmful to Minors Internet case hasn't advanced much since the last time we spoke. It is still under preliminary injunction while we await State's response to our most recent motion. On Monday we are announcing our participation in a challenge to a new and unconstitutional harmful to minors law, but I'll need to withhold further details until our partners are ready for us to announce.

And we have urged the Media Coalition to support a challenge to Indiana's new harmful to minors store registration law. The law, H.B. 1042 would require any new retailer or any existing retailer that relocates after June 30 which sells or intends to sell even one item which is harmful to minors to register with the Secretary of State. Notification would include a list detailing the types of material sold or intended to be sold. The Secretary of State would then notify local governing bodies and any appropriate zoning authority of the retailer's registration. There is a $250 fee to register and noncompliance is a class B misdemeanor. The law goes into effect July 1. This law is a clear and present danger to comics retailers throughout the state, and one we intend to fight. We will have news about our involvement in a challenge soon.

SPURGEON: Is there any particular thing you want to see the Fund accomplish by the end of 2008?

BROWNSTEIN: I want us to have a 21st century web presence, and to have made the first strides towards a comprehensive education program for libraries aimed at assisting in graphic novel collection defense and development. We are taking steps towards both, and will hopefully have something to show by mid-summer, especially now that some of our time is freed up by the Lee win, and I can devote more time to these important educational components of our work.

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