Horror Comics v. Comically Horrible Laws

Although my paying job has of late been keeping me too busy to blog, it continues to expose me to delightfully blog-worthy material. Now that I finally have a free moment, I can share the latest and funniest legal oddity I've encountered: California Business & Professions Code § 16603 (2004). I ran across it while researching exceptions to the extraordinarily broad ban on convenants not to compete set forth in Cal. Bus. & Prof. Code § 16600. Those exceptions follow in subsequent sections of the Code, so I went tripping through them. Most relate to such unremarkable things as trade secrets and sales of businesses. Then—whoa!—up popped this legal freak:

§ 16603. 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 imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($ 1,000), or by both.

Lawmakers originally passed § 16603 in 1955. They must have worried that comic book publishers were using pernicious marketing practices to flood California with graphic images of unsavory behavior. Although horror comic book "pushing" may now sound like a laughably old-fashioned concern, lawmakers in 1984 approved an amendment doubling the statute's fine.

But what the heck is a "horror comic book"? § 16603 defines it thusly:

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.

Two odd things about the definition bear noting. First, the "horror" comes not from supernatural phenomena, but from anti-social behavior. Second, the definition does not require that a horror comic book glamorize or condone the crimes it relates; even a purely factual or resolutely disapproving pictorial sequence would fall within the definition.

Does § 16603 unconstitutionally violate freedom of expression? I am not sure. On the one hand, it plainly singles out a particular message for special and mildly unfavorable treatment. You might thus analogize it to a statute that imposes a tax on speech about crime, a matter of vital public interest. On the other hand, the statute does no more than penalize a peculiar and not very essential marketing device. Anyone who wants to deal in horror comic books can easily work around the law. You might thus analogize it to a statute barring, say, publishing crime stories on lilac-scented paper. Given those two contrasting ways of understanding § 16603, I remain unsure whether to regard it as horrible or comical.