Scrolling online through the California Business and Professions Code the other day, I was struck by a frightening sight. My pulse raced. My jaw dropped. I called out to an associate for help. I wanted to make sure that what I was seeing was real, i.e., that I wasn’t out of my mind. Many lawyers have read California Business and Professions Code Section 16600 by which California outlaws covenants not to compete. But click a few code sections over and you’ll be shocked!
Section 16603 has to be one of the strangest (and most seasonally appropriate) laws ever. It targets the two-for-one sale of comic books, stating: “Every person who, as a condition to a sale or consignment of any magazine, book, or other publication requires that the purchaser or consignee purchase or receive for sale any horror comic book, is guilty of a misdemeanor” punishable by jail time up to six months or a fine up to $1000. The section goes on to define a horror comic book with specificity:
“As used in this section ‘horror comic book’ means any book or booklet in which an account of the commission or attempted commission of the crime of arson, assault with caustic chemicals, assault with a deadly weapon, burglary, kidnapping, mayhem, murder, rape, robbery, theft, or voluntary manslaughter is set forth by means of a series of five or more drawings or photographs in sequence, which are accompanied by either narrative writing or words represented as spoken by a pictured character, whether such narrative words appear in balloons, captions or on or immediately adjacent to the photograph or drawing.”
In other words, in California, the law says you could go to jail if, as a condition to purchase a Fantastic Four comic book, you require a customer to also purchase a Spider Man comic book. Holy Hallucination Batman! (I know, we’re mixing Marvel and DC.) And by the statute’s definition, five narrated drawings about the Gargamel v. Smurfs, Tom v. Jerry, or Spy v. Spy mayhem qualifies as a “horror comic book”!
Stating the obvious, the statute has to have been a solution in search of a problem. Why would a comic book seller ever insist that a purchaser buy a second comic book as a condition of buying the first? And why would the California legislature ever be so worried about this scenario or so worried about comic books to ever pass this law?
But beware! Section 16603 remains on the books, along with a law restricting the tossing of flying discs on the beaches of Los Angeles in certain circumstances (Los Angeles Municipal Code §17.12.1430) and a law prohibiting bird hunting while intoxicated (California Fish and Game Code §3001). No doubt, decades ago, comic books struck fear in the hearts of many. In the 1940’s and 50’s, critics called them “a strain on the young eyes and young nervous system” and “pulp paper nightmares,” “loaded with communist teachings, sex, and racial discrimination,” and “flaunted alluringly in the faces of children at many stores, to be purchased and read without guidance.”
The legislative history on Section 16603 is missing color and illustration. California Bill No. 1598, “[a]n act to add Section 16603 to the Business and Professions Code, relating to tie-in sales of horror comic books” was brought to the floor by California State Senator Hugh P. Donnelly. In 1983, it was amended to increase the maximum fine from $500 to $1000. In 1993, the California legislature unsuccessfully tried to amend to include car-jacking as one of the crimes whose inclusion constitutes a horror comic book.
Having considered all of this, I now realize that comic books really aren’t so frightening at all. Doctor Doom, the Green Goblin, Magneto … no big deal. That’s just fiction. What is far more spine-chilling is reality … too many instances of inexplicably bizarre behavior by elected officials. But at least we can be comforted to know this is nothing new. Be careful, comic book sellers! And Happy Halloween!