INTERIM EXECUTIVE DIRECTOR JEFF TREXLER ON GETTING THE SCANDAL-PLAGUED CBLDF BACK ON COURSE
AN ESSAY AND INTERVIEW
In the wake of a harassment scandal involving the former Comic Legal Defense Fund executive director, incoming Interim Executive Director Jeff Trexler has made reconnecting with the comics community a high priority. When he approached tcj.com with a proposal for an essay on how to rebuild an ethical environment at CBLDF, we counter-proposed an in-depth interview to follow up on the issues raised by his essay. There is a great deal to learn in Trexler’s essay and interview about how a nonprofit organization functions and how it can lose touch with its core purpose. But for those mostly interested in how these things affect CBLDF and whether the organization is likely to deserve the public’s trust going forward, we have condensed a list of relevant bullet points. Bolded passages in the interview will also guide readers to key areas of discussion. — MD
Some follow-up questions were sent to Jeff Trexler after a series of posts on the subject of NFTs were posted on the official Comic Book Legal Defense Fund’s Twitter account by Trexler. Those questions have been incorporated into the interview. - Tucker Stone
- *Even before reports of harassment by CBLDF’s former executive director were made public and accusations of lack of oversight were directed at the CBLDF board, Trexler believes the organization, in its tight focus on free-speech cases, became closed off from the needs and expectations of the comics community. That disconnect made it easy for the community to lose faith in CBLDF when the scandals around its executive director forced his departure.
- *The conditions that allowed CBLDF’s evidently toxic office environment to continue for so long extended beyond this one organization and were based in systemic problems in sexual harassment law and legal culture.
- *These systemic problems set up an oppositional relationship between companies and employees who raise concerns about sexual harassment.
- *Employees who speak out are typically at a disadvantage and risk repercussions that will affect their careers.
- *So-called independent mediators are often motivated to resolve issues in favor of the hiring company’s interests.
- *Trexler has been instrumental in implementing ethical reforms in the fashion industry and believes similar changes can restore the CBLDF’s once-respected place in the comics field.
Proposed reforms at CBLDF:
- *The CBLDF’s core mission will be directed at a broader range of civil rights issues, including copyrights and fair contracts, and will not be narrowly focused strictly on censorship and obscenity cases.
- *Trexler argued that CBLDF is needed because it is in a unique position to be a legal resource for the comics community, and plans call for a greater emphasis to be placed on providing free legal information and educational outreach to comics retailers, publishers and creators.
- *Organizationally, CBLDF will be less centralized, with greater opportunities for staff to provide input and work as a team with the executive director. The executive director will not operate unilaterally.
- *The practice of using Non Disclosure Agreements to prevent employees from talking about harassment and civil rights concerns will be discontinued and a culture of public transparency will be encouraged.
- *More stringent record-keeping and reporting procedures will be established. The number of harassment complaints and their resolutions will be made available to the public.
- *An external committee composed of trusted members of the comics community will review complaints and provide input to CBLDF. Members will regularly rotate in and out of the committee to maintain its “outsider” status.
- *Trexler said he intends to stay in the executive director position only as long as it takes to reboot the organization and implement his proposed reforms, which he anticipates may be completed by next July’s San Diego Comic-Con International.
- *Trexler said greater diversity will be a goal in board membership, staffing and community involvement.
- *Until reforms are established, CBLDF will refrain from fundraising appeals.
RE-RIGHTING THE CBLDF
Before explaining why I agreed to help reboot the Comic Book Legal Defense Fund as its Interim Director, I want to thank Michael Dean and TCJ.com for their standout reporting on the CBLDF’s harassment issues. The first step toward changing a dysfunctional organizational culture is getting people to see the need for reform.
Of course, for some of you the CBLDF is irredeemable, and I can see why. In 2005 the organization retained its executive director despite a well-documented incident at Mid-Ohio Con that would likely get a nonprofit leader fired today. Then, at the height of the #MeToo movement, the CBLDF maintained the status quo despite renewed attention to the story. The subsequent revelation of the 2010 nondisclosure agreement brought to light actions that many thought unthinkable for an anti-censorship organization, with the sin’s gravity compounded by time taken to respond to the request to let the silenced speak.
As an attorney with several decades of experience studying, teaching and advising on ethics matters, I understand wanting to see the CBLDF razed to the metaphorical ground. There are any number of organizations about which I feel the same way, and to be frank, if you’d asked me back in 2005 whether the CBLDF should continue, I likely would have said no.
Nonetheless, what I’ve seen in anti-harassment advocacy and reform since then has convinced me that change is indeed possible. In this post, I’d like to explain what led me to this position and how I hope to transform the CBLDF into a model of ethical nonprofit management.
Comics and ethics
If you’re only familiar with me through my writing on comics and law for TCJ.com and other online publications, you might be wondering what an attorney who works with intellectual property law could know about nonprofit management and ethics advising. This is a fair question to ask given the trend toward hyper-specialization in contemporary legal culture, but my background is somewhat unusual. I expressly went to Yale Law School after my religious history Ph.D. in order to study corporate ethics and nonprofit organizations law, both of which raise issues that call for extensive cross-disciplinary knowledge.
Ethics and nonprofits remained the focus of my work following law school as well. My first law-firm job was as a lawyer for tax-exempt organizations, and as a law-school professor, my teaching and writing covered both nonprofit-organizations law and corporate ethics. This led to my becoming a chaired professor of social entrepreneurship and executive director of the related academic center, during which time I also served on the board of directors of the Museum of Comics and Cartoon Art.
My interest in the ethical dimension of law contributed to my decision to start writing about the Superman and Jack Kirby lawsuits, which at base were more about values than the technicalities of copyright. What does a company owe a creator? At what point does a creator’s claim give way to others who have worked on the creation? Should law in a democratic system compensate creators if the perceived value of their intellectual property changes from the time of the initial sale? Are there ways we can use innovative legal arguments to force an equitable settlement that established law would not provide? Beyond trying to explain the law as written I have always tried to explore what people think the law should be and what that could mean for what’s next.
What particularly impressed me about comics-related lawsuits is that they’ve consistently raised fundamental questions not just about copyright, but the very nature of civil rights. As I explain in a recent post for the CBLDF, civil rights as a legal concept refers to more than discrimination – it is because civil rights are so fundamental to the social order that laws against discrimination were enacted. Historically, civil rights are the rights associated with people’s relationships to each other and property – families, associations, business entities, and, arguably suffusing them all, contracts. This is why when Congress enacted its first civil-rights statute in 1866, codified in 42 U.S.C. § 1981, the law expressly provided that: “All persons within the jurisdictions of the United States shall have the same right in every State and Territory to make and enforce contracts,” including “the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
Within the broader context of civil-rights litigation, comics lawsuits stand out in their iconic alignment with the dynamics of the comics medium itself. As Marshall McLuhan famously observed in his 1964 classic Understanding Media, comics is a participatory medium – in context, McLuhan was referring to the way its characteristic array of words and images invites the reader to fill in the blanks, but, as we’re seeing to a spectacular degree today, this extends to creation and commerce as well. Countless fanzines, indie publishers, web comics, and comics-inspired stories across media serving as an ever-present reminder that comics are more than just content to be purchased and consumed. We want to be involved, to be part of the action; a comic that makes us feel excluded and powerless is by its very nature a betrayal of the form.
This aspect of comics has an intrinsic relation to the world of rules and, through rules, the law. Although WarnerMedia might not have had this foremost in mind when it appointed an e-sports executive as DC’s general manager, the move reflected McLuhan’s observation – anticipating Grant Morrison’s Invisibles – that comics “belong to the world of games.” Comics serve as cultural models, collective and social, with rules, outcomes, and patterns that are extensions of individuals and communities alike.
Ideally, the legal world of comics, like comics culture more generally, would share the medium’s ethos of universal access and agency, the right of everyone to be full and equal participants in the creative culture we all share. When the rules of life don’t match those of our models, however, the disconnect can shatter trust in both. This is why the stories of Siegel and Shuster, Kirby and Lee, and Wertham and comics censorship have such power in the comics world: When comics draw us in but the law casts us out, the entire system is on trial.
Sexual harassment law overview
The value conflicts implicit in comics lawsuits are evident in recent critiques of the CBLDF, particularly in matters involving what is commonly described as sexual harassment. I add “commonly described” not to downplay harassment concerns, but rather, to highlight the often troublesome disconnect between how law categorizes actions and how those actions are more widely perceived. A literal application of the law and legal norms can lead to the failure to recognize sexually aggressive behavior as harassment; likewise, sexual harassment law and the norms of legal practice can normalize treating victims as pariahs while nominally rehabilitating repeat offenders. As problematic as the CBLDF’s actions were, what makes them even more tragic is that they were not at all unusual.
The report-to-exile cycle was particularly prevalent before the #MeToo movement drew public attention to a reporting system in which harassers and their employers seemed to wield disproportionate influence. While investigations and discipline could indeed at times result in a just resolution, more often than not in my own anti-harassment work I found lawyers on both sides of the table explaining to me that there’s simply a way things are done: the complainant goes and the offender stays, especially if that offender is a successful white-collar professional.
In contrast to the ideals of equal access and agency, the legal culture of sexual harassment tends to put victims in a process that can seem Kafkaesque. The promise of justice instead leads to a nondisclosure agreement, a token settlement, and, at most, modest discipline for the alleged harasser, especially if the harasser had institutional power. A victim of harassment can even receive a warning from HR not to file a written report lest the inevitable career damage result – this chilling scene from the 2020 film The Assistant depicts a scenario I’ve encountered multiple times.
This problem was particularly acute for nonprofits. Proven success at raising funds or public outreach could render a nonprofit manager impossible to remove, and the aura of virtue fosters an innate resistance to seeing the organization as capable of anything but good. Those who challenge that image strike at the core of the nonprofit’s identity as well as the self-image of everyone in it, making it imperative for the in-group to banish the blasphemous outsider.
I started to encounter this phenomenon a couple decades ago, when I first attempted to help several women who had experienced sexual harassment but encountered a system that seemed not just indifferent but hostile to their plight. Part of the problem could be ascribed to the self-serving and at times downright evil individuals who delighted in making others’ lives miserable for their benefit, but even more insidious were the systemic design flaws in our legal framework for making and resolving sexual harassment reports.
In brief, federal law on sexual harassment is grounded in judicial precedent interpreting Title VII of the Civil Rights Act of 1964, codified in 42 U.S.C. § 2000e-2, which prohibits employment discrimination on the basis of race, color, religion, sex or national origin. Title VII’s scope may seem rather expansive now – in fact, the Supreme Court recently interpreted the prohibition on discrimination on the basis of sex to apply to transgender and gay employees – but the Court did not recognize sexual harassment as a legitimate Title VII claim until its Meritor Savings Bank v. Vinson ruling in 1986, followed in 1993 by the establishment of the current legal standards for determining whether an organization should be liable for a harassment claim.
Under what is known as the Faragher-Ellerth affirmative defense (named after the Court rulings that established it), an employer can generally avoid vicarious liability for sexual harassment if (a) the employer takes steps to prevent and promptly correct harassment and (b) the employee claiming harassment unreasonably fails to take advantage of any of the employer’s preventative or corrective measures. This defense is not available to the employer, however, if the employer retaliates against the employee who reported harassment by taking a tangible employment action, such as dismissal or demotion.
The problems with process
On the surface this might seem reasonable – after all, why should an employer have to pay for the actions of a harasser if the company itself prohibits harassment and provides a way to stop someone who breaks its rules? But as is all too often true in law, the details can spawn devils that make the problem worse.
One issue with federal sexual harassment law that might be immediately apparent to comics freelancers is that Title VII protections apply only to employees, not independent contractors. Moreover, Title VII applies only to employers with fifteen or more employees, a threshold that itself involves a calculation based on payroll and working days over a minimum number of weeks in specified years. These threshold limitations leave many within comics with no recourse for situations that would otherwise trigger a Title VII sexual harassment claim, such as, say, insinuation that having sex with the editor would get a writer or artist hired for a particular series. It also exempts situations where a job is not directly at stake even though refusing a powerful person’s advances could have harmful ripple effects on a professional’s prospects throughout a particular industry.
Technically, Title VII does not exhaust the possibilities for protection. State and local governments can also enact their own standards for dealing with sexual harassment; federal law provides the floor, not the ceiling, for protecting civil rights. Until recently this made little practical difference, but as we’ll discuss later, that has been changing in select jurisdictions, including several that are especially relevant for comics and the CBLDF: New York, California and Oregon.
Even if the complainant meets the eligibility requirements for protection, the Faragher-Ellerth affirmative defense establishes a matrix of incentives that can make it all but impossible for a harassed individual to bring a successful claim at any level – or at least do so without being subjected to a process that can be as traumatic as the harassment itself. The availability of the defense has made organization-led investigations a standard means of escaping liability, but that process has a clear inherent weakness: filing a report puts the employee reporting harassment in an inherently adverse position to both the organization and the alleged harasser, even as the organization is responsible for assessing the harassed employee’s claim.
A person reporting harassment already is at risk of sexual stigmatization, which can have negative effects on one’s career regardless of the investigation’s outcome. Such stigma also reinforces an already existing psychological tendency within a group to protect itself from a perceived threat and to resist seeing itself as a place where its employees, especially upper-management, engage in harassment.
The negative framing of the complainant, exemplified by the reductionistic and negative character of the standard legal term “complainant,” can also affect the decisions of an organization’s attorneys. Over the years I’ve heard multiple attorneys representing nonprofits explain that the fundamental duty to serve their clients’ best interests puts them in an adverse position to anyone filing a harassment report, since they pose a liability risk.
For lawyers with this perspective, the path of least resistance toward serving the organization’s interests is to protect a successful manager, who still has potential to benefit the organization, and to remove the complainant, who has by filing a complaint ostensibly displayed a willingness to put the organization at risk. Even third-party investigators hired to conduct the inquiry can feel an incentive to find that the harassment never occurred or to recommend relatively light discipline for the harasser, since the investigators will typically want to be hired again.
Going back to McLuhan’s understanding of the medium as the message, it’s possible that importing the medium of a trial itself into the organizational context subtly shapes the process in favor of retaining harassers and removing victims. These outcomes echo the primary outcomes of our criminal and civil trial courts: prison, in which punishment is designed to end in rehabilitation and restoration; and payment, which treats financial compensation as the substitute for loss. At the very least, the potential for what is effectively an appeal to the courts is responsible for the standard legal advice not to apologize to harassment victims, since that apology could be used as evidence.
Even when an organization’s counsel and investigators view curbing harassment as in the organization’s best interest, there is yet another aspect of institutional design that works against the complainant: the settlement process. Court cases are expensive: they take time, create tension, and cost a substantial amount of money, especially if lawyers are involved. To ameliorate this for all parties, our legal system has integrated mediation into the harassment reporting process from the moment a complaint is filed with the Equal Employment Opportunity Commission, and experienced lawyers know that one of the first things trial courts in a civil case typically do is direct the parties to try to reach an agreement.
Again, this no doubt seems reasonable, and in disputes involving conflicts over differing priorities or contractual interpretations it makes sense to assume that neither side is right for the sake of securing an efficient resolution to an otherwise intractable disagreement. Mediation differs from due process in an investigation, though, in that neutrality continues regardless of where the evidence leads – what matters is that the two sides reach an agreement, not whether the underlying report is true. The result is Schrödinger’s harassment: for purposes of discussing the settlement, the harassment both did and did not take place.
This approach has any number of practical advantages for avoiding a protracted trial, but when dealing with a civil-rights violation, establishing as a procedural rule that the complainant is not to be believed reduces justice to dealmaking in a way that many find obscene. A particularly troublesome aspect of the settlement process is the inherent imbalance of negotiating power. The typical complainants are overwhelmed by legal fees and the uncertain prospects for their future, but organizations, particularly if insured, can often afford to hold out for more.
Checks and balances
As much as harassment has been a recurring issue, we should not lose sight of the fact that prominent voices in the comics community called out the problem years before #MeToo made that a national trend. Colleen Doran’s compelling Scenes from the Small Press interview, The Comics Journal’s 2005 reporting on the CBLDF, anti-harassment initiatives at comic-cons, countless posts on blogs and social media – these stood in sharp contrast to a blinkered worldview that, to note but one memorable panel I attended when starting out in this area, made it possible for certain legal experts at the turn of the millennium to celebrate how Meritor Savings Bank and the Faragher-Ellerth affirmative defense had made sexual harassment a relic of the past.
The fact is that, until recently, attempts to change the system got precious little exposure outside of rare and evanescent bursts of media attention. It was an environment that allowed the most aggressive organizational lawyers to get away with things I never thought I’d see, from a harasser’s boasts about having judges in his pocket to vicious assaults on witnesses and counsel. Less violent but more pervasive, organizational silos and legal specialization added to the challenge of reform. When boards and executives delegated responsibility for the resolution of harassment complaints to HR departments, employment counsel, and third-party professional investigators, the institutional inertia was to trust the experts; critiques from others were just noise, if heard at all.
The full story of how this climate for harassment began to change could fill several books, but for our present purposes I want to focus on how the arc of anti-harassment reform shaped my perspective on the CBLDF. My early attempts at challenging the harassment reporting system provided invaluable experience, but despite, shall we say, making it possible for several men to leave executive positions to spend more time with their families, it was evident that working on a case-by-case basis would have at best a limited effect. Becoming Associate Director of the Fashion Law Institute provided an opportunity to help develop anti-harassment strategies across an entire industry that in turn could exemplify best practices across social sectors.
A key realization early on was that the legal framework for harassment reporting was not so much a progressive innovation as the product of a problematic compromise. The founding myth of anti-harassment reform casts a distinctly elitist glow, with awareness of the problem often described as emerging from the 1970s professional class: brave office workers joined pioneering activists, lawyers, and legal academics to usher in revolutionary precedent as well as an array of state and local civil rights laws mirroring the rights established under federal law.
Whatever the inspirational value of this story, the reality is that the contemporary anti-harassment movement has deeper roots, extending back several centuries across social classes from the landed elite through the exploitation of slave laborers. Woodcuts and cartoons played a significant role in cultivating awareness of the problem during the industrial revolution and emergence of modern transportation networks, depicting troublesome incidents at factories, on public transportation, and in busy city streets. While clever methods of foiling ungentlemanly mashers were the subject of humorous images – the hatpin defense being perhaps the best known today – somewhat less familiar are the attempts by garment- and textile-worker unions more than a century ago to make protection against harassment a standard part of employment contracts.
Two things in particular stand out today about the use of strikes to try to negotiate new anti-harassment protections. One is that they provided the institutional template for the investigation, discipline and anti-retaliation measures now better known as responses to the availability of the Faragher-Ellerth affirmative defense. The provisions ultimately adopted in the workers’ contracts gave the company responsibility for – and control over – the process, including who conducted the investigation and how the harasser was disciplined, if at all.
Equally significant, though, are the workers’ original proposals for this process. Before the fateful compromise, the workers’ proposed structure placed responsibility for the process in a group that consisted of not just company representatives but respected members of the community. The idea was to create a system that fostered integrity by providing a check and balance against the various institutional incentives favoring managers and the status quo.
Today, outside checks and balances on internal investigative efforts are meeting less resistance in the corporate world. As I’ve personally witnessed in the fashion industry, an increasing number of executives recognize that in today’s social-media environment, closing ranks can pose a far greater risk to brand reputation than integrating trusted third parties into the review process.
Another area in which my fashion experience was instructive for comics was the scope of legal protection against harassment. Like the comics industry, fashion relied on a substantial gig economy long before Taskrabbit and Fiverr. Models were a particular focus of attention – because models typically are treated not as employees but as independent contractors hired for specific shows or photo shoots, they were vulnerable to sexual advances but lacked a legal means to redress them.
Our initial efforts at addressing this problem focused on amplifying outside voices, from co-founding and advising new organizations highlighting the problem to developing new industry standards. We also provided pro bono legal assistance as well as corporate ethics training, including assistance with harassment complaints.
As important as these measures were, they did not address the systemic flaw within Title VII: the lack of protection for independent contractors and employees of small companies. Accordingly, after the Institute successfully participated in the drafting of and advocated for legislation in New York state to protect child models, we called for more general reform aimed at creating new protections for all workers, regardless of their employee status.
The #MeToo movement in 2017, provided an unprecedented opportunity to make this happen, at least on the local and state levels. We participated in the New York City Commission on Human Rights’ efforts to develop landmark sexual harassment law reforms at the city level, which went on to provide the basis for similar reforms in New York and other states. (For those who are interested, you can find my public testimony here and here.) The value of reforming local sexual harassment law is that it can provide a model for reform at the state and federal levels. In this respect, Title VII exemplifies our federalist system; since this federal law provides a minimum level of protection without preempting state or local law, the latter jurisdictions are a forum for experiments with change.
The reforms enacted in New York City included three particularly important developments. Protection for independent contractors and elimination of the minimum employee threshold for small business created a way for freelancers to bring sexual harassment claims despite not having the right to do so under federal (and at the time New York) law. At a more fundamental level, it reconciled civil-rights law as written with the historic nature of civil rights as a legal concept – inasmuch as contract rights are civil rights and have been formally recognized as such in U.S. law since 1866, excluding independent contractors from Title VII civil rights protections is legally incoherent.
Another important reform was the right for victims to speak despite having signed nondisclosure agreements. The original proposal was for a total ban of NDAs in sexual harassment cases, but this would have had the unintended consequence of discouraging victims concerned with stigmatization and professional harm from filing harassment complaints. Another characteristic aspect of the New York City law and others following its lead is that it only applies to NDAs entered into after the law took effect. The policy reason for this is the Constitution’s Contracts Clause, which prohibits laws impairing contractual obligations. Nonetheless, legislation in New York and elsewhere makes clear that enforcing NDAs to force victims to stay silent is inconsistent with the public good.
On the state level, New York’s post-#MeToo harassment reform was led by a member of the Fashion Law Institute community, Sen. Alessandra Biaggi. Besides extending the key city provisions statewide, her legislation also eliminated the Faragher-Ellerth affirmative defense for harassment claims brought under state civil-rights law.
Carthago Delenda Est?
Which brings me to the CBLDF. As some of you know, despite being an attorney I haven’t been a part of the CBLDF. I did a quick walkthrough of the annual San Diego Comic-Con party a couple times and attended an information session on its work in the Paul Mavrides California sales-tax case back in 1996, but for various reasons I decided that others were better suited to the Fund’s work, which in recent years has been almost limited to censorship and First Amendment law. In fact, if you look at my author page for TCJ.com, you’ll see that my first series of articles for this site built to a not so subtle recommendation for the CBLDF’s board to broaden its then-current approach to its mission, a subject I’d also addressed through my analysis of the Christopher Handley case for the now memory-holed [email protected].
When I saw critiques of the CBLDF resurface in June, my immediate impulse was to write a more extensive post on what the CBLDF should do. As I wrote down some thoughts for the article, however, my experience seeing the in-group/outsider dynamic make organizations more defensive got me thinking that the reforms had a better chance of becoming reality if they were done by someone inside the organization.
In offering to help, I made clear from the outset that I had no interest in becoming the organization’s new long-term executive director. Having a stake in the longer-term position would raise questions as to whether I was taking action to secure that job, while serving as Interim Director would show that I am truly here just to assist with the needed institutional reforms. In addition, diversification is an integral part of the reform agenda, and wherever the CBLDF lands with respect to the next executive director, putting myself up for that position would not align my actions with my words.
The threshold issue that I had to address was whether the CBLDF should continue to exist at all. I thought about that a lot, and as much as I empathize with wanting to see certain organizations disappear, there were several considerations that led me at least to try to help reform the CBLDF.
One factor was the realization that the way the CBLDF handled reform reflects a more systemic problem with sexual harassment law and legal culture. This does not excuse what was done – I’ve been working to change the all too common response to harassment reports for almost 20 years – but it does suggest that the problem might be prevented from recurring by changing the rules.
Another consideration was the unfortunate reality that every day we all deal with businesses and nonprofits that have fired victims and protected harassers. The pain they cause is no less real than the pain caused by the CBLDF; nevertheless, they continue to exist. I happened to be meeting with an Equal Employment Opportunity Commission official when one of the first groups of Wal-Mart employees arrived in hopes of launching a class-action against the company – two decades later lawsuits are still being filed, and Wal-Mart is not going away. Banks, hedge funds, employment agencies, department stores, magazines, restaurant chains, universities, hospitals, trade associations, unions, social enterprises, Congress – the larger the organization, the greater the likelihood that it has processed multiple harassment complaints. There is a dire shortage of moral perfection in groups. Instead, every day we interact with a commercial, nonprofit, or governmental entity, we face what one of my law school professors, Judge Guido Calabresi, called a tragic choice – value conflicts are inevitable.
Ethics reform is rife with unintended consequences, and anti-harassment reform is no exception. In contrast to larger entities, a single report of harassment can lead to the dissolution of a smaller organization, often leaving unemployed the very people – typically women and people from marginalized communities – who had objected to the harassment. A culture in which harassment leads small organizations to shutter while larger ones thrive not only widens the inequality gap, but it eliminates the very organizations in which small changes can make the greatest difference.
Again, none of the above is meant to excuse or justify what happened at the CBLDF, and I have no illusions as to whether you’ll find any of it convincing. That’s not the point; what I’m seeking to do here is simply to explain the reasoning behind my personal decision to offer to help.
Rather than invest anew in creating another nonprofit entity or channeling funds to a nonprofit with a different mission, my sense is that it’s worth trying to use existing resources and infrastructure to rebuild the CBLDF. Starting a nonprofit is fraught with risks – nonprofits are easy to form but difficult to sustain. At the same time, while there are invaluable resources in the comics realm for providing support to creators who fall into poverty, the CBLDF is in an unparalleled position to give those in need throughout comics the legal tools for avoiding that plight.
Reforming the CBLDF
The reform agenda that I have in mind for the CBLDF is comprehensive – no area is exempt. Because an integral part of restoring trust is aligning actions with values, returning the CBLDF to its roots as an extension of the comics community will be a primary goal. Equal access, personal agency and creative expression will be leading principles, and as I hope this article illustrates I intend to be open about everything I do.
Implementing new policies and procedures for dealing with harassment and other ethical concerns is an immediate priority, but we will be going beyond the minimum standards set by existing civil rights law to encompass convention activity and independent contractors everywhere the CBLDF works. We’re also planning to provide for external oversight of our harassment reporting process in order to reduce the risks posed by in-group dynamics as well as delegation to investigators and employment counsel. The process for enacting these changes has already started, and we’ll be publishing the new policies for everyone to review.
In keeping with contemporary legal standards in New York, California, Oregon and other jurisdictions, I am recommending that we no longer require nondisclosure agreements for those who raise civil-rights concerns. If confidentiality is requested by someone who brought a complaint, their request would be respected, with the proviso that they are free to change their mind and to speak publicly at any time.
Based on questions I’ve received elsewhere, I gather that some of you might be wondering why I haven’t mentioned any victims of harassment by name. As someone who typically works with victims and serves as an outside advisor representing their concerns, I believe that it’s not the organization’s place to do this without their consent. That conviction did not change because I took a temporary position at the CBLDF – my work seeks to restore people’s agency, not to have an organization presume to speak on their behalf.
Another immediate priority is to return to the full scope of the organization’s mission, which has been narrowed from its original scope and stated purpose. To make sure there are no questions about the CBLDF’s ability to help beyond a limited set of free speech concerns, I’m in the process of revising our chartered purpose to make it clear that we will continue our vital First Amendment work while also providing more expansive legal support to the comics community.
Although we deliberately haven’t publicized it, we have continued to respond to requests for help with censorship and other issues. Information about new initiatives will be posted on our website as these programs take shape. In the meantime, if you have a law-related question related to comics please feel free to let me know at [email protected] or [email protected]. I’ll try to address it by email or, if appropriate and with respect for your privacy, an explanatory post.
Diversification at all levels is equally important. I understand that some of you are unhappy with the fact that I am a white male, and I get that – I would not have offered to help were it not for my particular experience and expertise. Regardless, from the outset I’ve made clear that I am not seeking the long-term executive director position, so if you find my race and gender identity inherently disqualifying, let me know who you think should replace me.
A nonprofit should not be synonymous with its executive director. A common weakness in nonprofit strategy is reliance on a strong executive instead of organic institutional development, and that’s not a mistake the CBLDF can afford to make again. We’ve already started shifting to a distributed systems approach in which the executive director facilitates the work of staff members rather than controlling everything, and you’ll be hearing more from our team soon.
This connects to another reason I wanted my position to be temporary – I want to show that an executive director does not have to serve for life. No one is too important to leave.
In addition to continuing our efforts to oppose censorship in schools and libraries, we’ll be expanding our educational outreach to the entire comics community via our website and public programs. We’ll also continue our educational initiatives for teachers and librarians.
We’ve started digitizing our records so the board will have access to day-to-day operations for day-to-day review. I’ll also be establishing new reporting procedures, both for the board and public review.
I cannot promise that everything I’m trying to do will work. Reform by its very nature is an uncertain process, and I am certain that I am going to make mistakes. Nonetheless, I have seen reform I did not think possible when my work in this area started, and thanks in large part to many of you, there’s a newfound awareness of the need for change. My hope is that the CBLDF can become a model of a better way – and that if we can do better, you’ll continue to let us know.
INTERVIEW WITH COMIC BOOK LEGAL DEFENSE FUND INTERIM EXECUTIVE DIRECTOR JEFF TREXLER
MICHAEL DEAN: It seems to me the most urgent issues for CBLDF right now are divided between 1) what kinds of changes are necessary to correct problems at CBLDF and 2) what is necessary to convince the comics community that CBLDF has turned over a new leaf, so I’ll ask questions about both areas.
I get the impression that you approached the board about taking the position of an interim director. Can you say a little about that? Who’d you talk to? Did the board take some convincing?
JEFF TREXLER: What I can tell you is I did reach out to the board very early. It was a much smaller board than it was before. They brought me in to talk to everybody, asking me questions: what I’m interested in doing. I think the big question anybody has about something like this is: “Is this really you just coming in to game for the long-term position.” The biggest point that I was emphasizing at the time was that I am not interested in the long-term position. What they really needed was a turnaround artist, somebody who could come in and say, “This is what needs to be done. This is how you restore trust. This is how you need to rework your mission. This is how you need to rework your programming. This is how you need to interact with your members.” It was all about that sort of thing and I felt like for me to come in with an agenda to stay for years and years, it wouldn’t be good for me because it would promote this agenda to try to do what I can to stay, which is not what my purpose is. And I didn’t think it would promote trust.
Diversification is a big issue for me. I knew from the get-go that I was going to be advocating for greater diversification in the organization, because the comics community is incredibly diverse. There needs to be some mirroring. But I couldn’t do that credibly and say, “Oh by the way, I’m going to do this transition and the first thing you should do besides diversifying is I should be there forever.”
One of the things that they got away from over the years is rare but important in the nonprofit world, because the strongest organizations over the long term grow out of circumstances similar to the CBLDF. This is an organization that started because it was a group of people coming together to address a recurring problem. They got together. They helped solve the problem. They reached out to the community, got all of the people who were concerned for the same problem to pitch in some money, to report on the story. You look at the Friendly Frank thing that you were covering in The Comics Journal. People were reporting on it, people were talking about it. Everybody was involved in solving this problem, and when they realized this is a recurring issue, it’s something where we can help so we don’t have to start from scratch every time, then the organization emerged out of that collective action. Which is an ideal circumstance for starting a nonprofit, because you have a buy-in from everybody from the start and it gives them a sense that they are a part of it, that it’s fulfilling a need for them, that it has value. So it’s not a surprise to me that it was able to sustain itself over a period of years. We’re approaching … in a few years, it’ll be 40 years, right? [CBLDF began in 1986.] So because you have an organization with that kind of core institutionally, you have strength from the beginning.
You can see over time that it did what a lot of organizations do. It started cloistering; the system became more closed. It sort of turned in on itself. You started seeing detachment from the members, in terms of the interaction, in terms of the purpose. The members were becoming mainly a fundraising tool. When that happens, when you start seeing that detachment between the community and the organization, you’re setting up circumstances so that when something goes wrong with the organization, you can find a sudden collapse. Like a company that’s going along very nicely and then it goes bankrupt all at once, but really it’s been a longer process; you just weren’t recognizing what that process was. But it was obvious to me as a nonprofit person what was going on. And in The Comics Journal and The Beat and Newsarama, every so often I would write about CBLDF and I was kind of hinting at things I was seeing.
DEAN: That’s interesting. A lot of people think of CBLDF doing OK and then it got Charles Brownstein, but you’re tracing it back to earlier roots.
TREXLER: Yep. Once it lost that oxygen; it was slowly cutting itself off from everything it needed to survive. When you look at the history of comics, these legal concerns have been here from the beginning. You can go back to the controversy of who owns The Yellow Kid. It’s something that’s been there a long time, even before Siegel and Shuster. It’s a shame to have that detachment develop organizationally, because it really didn’t have to be the case given the nature of the comics culture and the comics community.
DEAN: Stepping, even temporarily, into the CBLDF executive director’s shoes at this moment seems tricky — some would say foolhardy. Especially considering your gender, as you noted. Have you considered trying to introduce a female perspective (beyond that of current board president Christina Merkler) into the process — a female co-director, say, or an ombudswoman who can oversee complaints? You noted that you’re only going to take the position temporarily, but it’s a pretty crucial juncture in terms of rebooting the Fund, and some might say, in light of past history, that another male executive director is not the best choice to perform that role. What would you say in response to that sort of skepticism?
TREXLER: I 100% agree on the foolhardy characterization, but I had to try. I have a strong sense of responsibility, no doubt influenced by the thousands of comics I’ve read since my earliest days of literacy, and the situation at the CBLDF had developed to a point where it seemed finally to someone with my approach to ethics reform could have an impact.
The gender and race question weighed heavily on me from the moment I first had the idea of approaching the CBLDF to offer to help. As I indicate in the accompanying article, if I had known anyone else with my experience and perspective I would have recommended them instead. That said, the fact that many have suggested that the CBLDF lacked non-male voices reflects a fundamental flaw that led the organization to its present state. I myself was surprised to learn that the CBLDF already had invaluable female and non-binary staff; most people just didn't see them, since the organization was for years synonymous with its executive director.
The CBLDF staff are eager to take it in a new direction. They also have areas of expertise that fit well with a distributed workflow. The organization’s management culture might not have previously given them the freedom and information they needed to fulfill – let alone express – their respective visions for the organization, but institutional experience is something we can cultivate; getting good people to join a nonprofit in the midst of a crisis is much more daunting.
My aim is that as the initial interest in learning about me subsides, our public initiatives will draw more attention to the people who are really making it work. For the record, the CBLDF's staff members are:
- Georgia Nelson, Director of Operations, who oversees our financial transactions, office management, and other infrastructure matters;
- Karen Evans, Education Coordinator, who is responsible for our outreach to teachers and librarians, such as reader guides and our responses to restrictions on books;
- Betsy Gomez, Education Advisor, who provides additional insight into educational matters;
- Patricia Mastricolo, Editorial Coordinator, who is responsible for overseeing our website and other content;
- Jordan Smith, Assistant Editor, who also works on our website and other content, including the creation of an upcoming style guide; and
- Nick Giangarra, Auctions Manager, who, as the title suggests, manages our auctions, which are currently on hiatus.
We're also assisted by Rachael Andreas, who works with Georgia in the Portland office.
When I arrived the staff was meeting daily, which has more recently settled into weekly general meetings along with more targeted individual communication as needed in the interim. I've made clear from our very first discussion that a primary goal in rebuilding is to give them each more decision-making authority. I've also encouraged them to be forthright in sharing their own thoughts on what the organization should do, including critiques of my own actions.
To cite but one example of how we work, here’s the process we’ve developed for handling requests for the CBLDF to sign onto letters in anti-censorship matters. As many of you are aware, this became an important issue for the CBLDF following the decision to co-sign the letter in support of Simon & Schuster’s right to publish a book by Milo Yiannopoulos.
- *When a request arrives, I review it with a particular focus on its legal content, ethical values, and alignment with the CBLDF’s mission.
- *I forward the request, including any attached letter, to our entire staff, with an accompanying email expressing my assessment and asking for their thoughts.
- *Staff members send their perspectives.
- *If the situation seems to warrant further discussion, we continue the conversation in email or the next meeting. I’m also available for individual or group calls.
- *When the matter involves a school or library, the education team has the option to take over the matter, which they’ve done with certain correspondence.
- *If the matter is public or involves a potentially complicated legal matter, I reach out with details to counsel at Kirkland & Ellis for additional advice.
- *If the matter is particularly complex or my perspective differs from what might have been done under previous management, I let the board know and ask for its perspective.
- *Once a consensus is reached and it’s clear that no one else wants to be the point person on the matter, I take action consistent with what we’ve discussed.
- *We’ve also started keeping a shared file with a record of the matter, those involved, and what we’ve done.
- *Reports are made to the board and, when appropriate, communications and counsel.
The above might seem like an obvious approach, but I’ve been informed that it’s not what was done previously.
All of which is to say, I am not alone. A diversity of perspectives is vital, and I’m doing what I can to make that an integral part of everything we do. In fact, it’s why my articles and interviews consistently note that I’m open to everyone’s questions and comments. Let me know what you think. I’m listening, even – especially – if you have different ideas.
DEAN: As you describe the new workflow arrangement, it seems to provide an opportunity for substantial input from staff and a healthy collaborative interaction between the director and staff, and you could have an executive director who comes in and solicits everyone’s opinion and consults the board at every opportunity. But I’m sure your aim is to make this as bulletproof as possible and not dependent on the good will and good manners of the director. If, say, Donald Trump is the next CBLDF executive director, is there anything in this system that would prevent him from bullying staff, ignoring their input and doing whatever he wants?
TREXLER: Yes, our checks and balances need checks and balances. There has to be a way so that we have these pressure points, so if you have somebody saying, “You need to go my way or the highway and I’m going to be in control, I’m not going to take No for an answer,” that kind of thing, where there’ll be other people in the organization, who either can be reported to or, even better, can see it happening right away — almost like antibodies in a human system — and these antibodies can go and ward off the person who’s trying to break the system down. I want to have an organization where there’s a constant information flow, so that it’s never solely wrapped up in itself; there will always be opportunities for people who are outside whatever feedback loop is in play to see what’s happening and be able to correct it. Often boards are sort of wrapped up in themselves, and maybe there’s one person who interacts with the executive director. But there needs to be a way for the staff to have interested feedback on what the board is doing. There needs to be a way so that the board can have real-time access to how the executive director is treating staff. There needs to be a way for your volunteers or people from the comics community to have some pipeline of information to that. And one way that this is often done is through committee. Because one of the things that people do not realize is that committees don’t have to be limited to members of the board. You can set up committees with people who are on the board and people who are outside the board. There are ways that this works to bring in fresh information from the outside, but also know that you have a conduit from the inside to go out so that people can be aware of problems that may emerge.
That kind of openness with the little safety valve built into the system where other eyes can get in and information can get out is going to be key. I’ve seen this work very well in some companies. Like I said, I worked in the fashion industry for a while. I’ve been advising on ethics there, and, like comics, what I was given in design culture has a lot of the same participatory elements: people want to create, people want to make, people want to be connected. Fashion’s all about communication, so that the more you close something up, the more you get resistance. If I can do something in comics similar to what I’ve been building and been a part of in fashion, I’ve seen it work and I think it can work very well.
DEAN: Certainly, I can see a lot of eyes on how the Fund is functioning. You mentioned that there are many women on the staff. But that alone I don’t see as a safeguard, because if you get the wrong kind of executive director, that just means more women to sexually harass. I guess what you need is a system that prevents abuse of power regardless of who is in the executive director position. So I see that there are a lot of people that are in the loop as far as what’s going on, but suppose somebody says, “OK, I don’t like the way the executive director is handling this,” they see red flags, what can they do about it? Because they’re still subordinate to the executive director, right?
TREXLER: There are going to be a couple of things: One: I don’t like the levels of a board with the executive director at the top and the people below at the bottom and building up. There are issues with that metaphor, but I’ll use it here because I think it’s somewhat accessible. So what I’m building from the team out, the idea is that the team will have a pattern of involvement, a pattern of responsibility, a pattern of action and this pattern’s going to be repeated. An iterative pattern: going to do it again and again and again. And the more you have that pattern established, the greater resistance you build into the organization to somebody coming in and trying to take it onto themselves. One of the things I’m trying to do from this standpoint is to try to build in resistance just in terms of patterns of interaction within the organization. The other thing is to create these safety valves so that if people are reporting something being done by the executive director, it won’t simply go to the board, but it will be built into the system that a complaint is viewed by somebody who isn’t part of the team and isn’t part of the board.
We can do this a couple of ways and I don’t see these as mutually exclusionary. As I think I mentioned, one of the things that companies do is that they will bring on a third-party organization to investigate and manage — Although the weakness there is that the third-party investigators will want to be hired again and again by a company, so you’re concerned that the investigators who are brought in will end up just working on behalf of the organization to put it under the rug. To avoid this in a nonprofit such as CBLDF, you really need to work to create a system where people who are part of the comics community itself will be rotating in regularly, because, again, you don’t want somebody to be captured, so you have people rotating in regularly to review the process and see what’s going on so that they can have a voice in how particular cases are handled.
You also set up a system for reporting. And this is something that I proposed as part of the #MeToo legal reforms in New York City. It got adopted at a governmental level at least here in New York City, although I proposed it for the entire private sector as well — which is to have regular ethics reports.
In the corporate world, when people think of ethics, they often think of conflicts of interest. A lot of corporate ethics evolved out of the financial sector and conflicts of interest. But I like the idea of having regular reports on these other ethics issues. If there are harassment complaints, then that is something that becomes public. The company, for privacy reasons, might not mention who; the report would note that there were x-number of complaints of harassment against the organization, this is how the complaints were resolved through disciplining, the person’s departure, something like that, so that people know there’s a track record here just in terms of things happening and you have a sense of how things are resolved. If you have a pattern of this sort of thing developing, then I think the pressure will continue for change to happen. And that’s how an executive director would eventually get fired.
With a nonprofit organization, particularly a nonprofit organization that depends heavily on donations or purchases, like the CBLDF, people have memberships, they buy art and that sort of thing. Money is not just something that funds the organization; it is information. Money is a vote. And I think the organization has learned this this summer: It is possible if people are able to use money to express support for an organization, people are also willing not to send money in order to withdraw that support when they’ve seen that there’s an ethical problem. That’s why I’m designing it this way, so that there will be an information flow so you don’t have to wait 13 years before something’s reported and there’s financial impact. You actually see what’s going on as close to real time as one can get in terms of public connection to it either by an imminent reporting process when the incident happened or a quarterly or annual process when there’s a report on filings that were done on complaints that were made. So you’re going to get that fairly quickly. It’s all about managing the feedback, giving opportunities for feedback and then managing it.
DEAN: As I imagine this external body that complaints might go to, I’m picturing a panel, maybe from the comics community, that are trusted individuals. Would they be serving voluntarily when problems like this come up?
TREXLER: That’s something I’m going to talk about with the team and with the board. There are a couple of models. I’ve seen organizations that pay people to serve, but again, the more you pay people to serve, the greater the likelihood that they have a vested interest and they don’t want to leave. And I also see some value in volunteering to serve. All of what I want to do with that is talk within the organization and also hear some thoughts from people in the comics community itself, sort of what they think is fair.
And understand — because I think ultimately you want to build a system that is trusted — even as I wasn’t actively speaking, I’d been reading, not just comics, but I’d been reading The Buyer’s Guide to Comics Fandom when I was a kid. When I went into college, I was given access to Usenet back when the internet was pretty young, and started following that stuff online, so my sense of the comics community is one that is extremely participatory. Feedback is vital. So for CBLDF, part of the mistake was that that feedback wasn’t being solicited. Over time, they’d lost the organization’s connection with the community. And I want that connection to come back from all aspects of the comics community.
DEAN: Have you been getting feedback?
TREXLER: I’ve been getting emails. I try to keep up with phone calls. It’s been a really good process. I’ve learned a lot. A lot of it’s critical. Some of it’s positive. I get a lot of recommendations and one of the recurring themes that I get — and I’m speaking of a phone call I just got a couple of nights ago — is: Get us back involved. Make us connected again. And so I want that to be there structurally. I want that to be built into the organization so that we never lose that connection with the comics community again.
DEAN: The feedback that you’re getting, does it seem like there’s still a lot of skepticism? Do people sound like they’re starting to warm up to the idea of CBLDF rebooting itself?
TREXLER: The impression that I’m getting, there are people who are naturally, and understandably, skeptical based on what the organization has gone through. One thing from my perspective that I’ve been gratified at is that the negative response has been less than I’d anticipated and people have been very welcoming to me.
I’ve been on panels for a while now and people have met me through my writing, so it’s been genuinely moving for me to connect with so many people who’ve been reading my work. And part of that has fed into the number of ideas that people have been willing to give me. And just to have the trust to be willing to give feedback is vital, important. So I’ve got a sense that not everything is closed. Which is fantastic, because there’s a sense of going forward.
But I’m under no illusion regarding the fact that I’m working for an organization that has squandered decades of good will. I read a lot of Carl Barks as a kid and I have all your volumes from Fantagraphics, and it’s not like the Beagle Boys run away with good will, you catch the Beagle Boys and the good will, like all the coins, is back.
One of the things I’ve gotten a lot of good feedback from people on is: Do they want to see the Comic Book Legal Defense Fund be about more than just obscenity cases? Which may be where it got its start, but part of the reason the obscenity cases were compelling was that it got at something organic to comics in terms of access to the marketplace, access to comics and reading material, about personal rights of the creators and rights of the community to have access to certain things, the right of retailers to sell things to make a living the way they want. So rights are centered on more than just obscenity. We’re going to keep doing First Amendment stuff. We’ve already been working behind the scenes where people have been getting their graphic novels pulled from libraries. I’ve helped on an intellectual-property issue recently with a creator who’d run into a bit of a bump. Helping people say what they want to say how they want to say it, making sure they can come back to their readership, making sure readers have access to the books they want and retailers can sell the books they want. That’s at the core of what we want to do. I’ve been trying to reframe the organization so that it goes back to the core value that you saw in Friendly Frank’s and other cases, which was about access, which was about expression, which was about the rights of creators, retailers, readers. All aspects of comics, not simply one subset within them.
DEAN: At the time, there was a lot of rallying around cases like that. But what would you say to critics today who complain that CBLDF only functions to serve the sexist expressions of white males?
TREXLER: Well, as someone who was, shall we say, privately offering those sorts of critiques over the years, I can sympathize with that. It’s part of what the ACLU had to wrestle with in Skokie, Illinois, protecting Nazis. One thing they then had to deal with is they didn’t want to be identified as the Nazi-promoting organization and part of the way they were able to deal with that was to signal that, even though they might be protecting somebody for this principle, that they don’t identify with the group they’re trying to protect.
And so part of the challenge for the CBLDF was the perception that we are saying, “We want to protect free speech and all kinds of free speech in the comics industry.” Then when you end up focusing on one particular type of case and eventually even one particular subset within those types of cases and it happens to align with the evident predilections of certain people who are connected with the organization, then the trust starts to go away, because people start suspecting a secondary motive. That’s part of the tension.
The poster child for this is what happened with Playboy, because here we have Hugh Hefner and he presents himself as: “I am fighting for free speech. I am fighting for gay rights” (which he was in the ’60s before a lot of other people). “I am fighting to liberate people.” But then there was the perception that: Really wasn’t that a cover for something else? Is that a cover just to get better access to women in certain situations who may feel like they need to give that kind of access in order to advance their careers? That’s the tension.
DEAN: Do you feel there are issues of diversity besides gender that the board needs to address?
Yes, at all levels: board membership, staff, and community involvement. I'll be discussing this more in my posts on the CBLDF site, since diversification is an ethical principle with significant legal implications.
DEAN: You listed staff that I wasn’t aware of. Have they been there all along or are some of them new?
TREXLER: I don’t know when everybody arrived. I do know that everybody on the list was there since I started, and they’ve all been a vital part of the transition. They’ve been wonderful. They’ve been a tremendous part of the organization. They’ve been through everything we’ve been doing in terms of rebooting. Everybody on the staff, they have gone above and beyond in terms of work they’re willing to do and their commitment to moving forward, their commitment to creating a different culture. I showed up here, and everybody wanted to talk, everybody wanted to share their ideas, and we’re moving forward. And I give them a lot of flexibility. There’s nothing I do that I don’t run by them. There’s only one instance when I didn’t run something by them, and that was because I had, like, two hours to respond to a brief, and that’s the time I needed to read the brief, to think about the brief and then send a response and there’s just no way I could email everybody and say, “Read a legal brief the next two hours of your day.” And after that happened I got in touch with everybody and said, “This is what I had to do. It came to me late. This is what I said. Do you agree with it?” And then we went from there.
DEAN: Have you gotten any pushback from anybody so far?
TREXLER: In terms of… pushback?
DEAN: In terms of: “Here’s what I want to do,” and people come back and say, “That’s a bad idea.”
TREXLER: Oh, the way I tend to present it is: “Here’s what needs to be done. Here are my thoughts. Do you have any ideas?” Have I gotten ideas from people that are different from mine? Sure. That happens regularly.
DEAN: So, it’s not just approval or disapproval. You’re looking for suggestions.
TREXLER: Right. I look for suggestions. I present alternatives. I say, “Here’s what can be done. What do you think? We could go this way. We could go that way. Or is there a third way I haven’t thought about? So, yeah, that’s already happened. Several times. Regularly.
I told people from the first time we had a meeting that, from my perspective, I’m a big believer in free information flows. I know there are a lot of people who are seen as employers or bosses or whatever you call someone in my position … manager, whatever … who like to be told good things, they like to be complimented. To me, that information doesn’t really help me. It’s gratifying and everything, but what I really need to know as we’re going forward is: How can I be better, how can the organization be better? What am I not seeing? What am I doing that isn’t right? The metaphor that I’d like to use is that the rudder should not be confused with the ship. Part of what an executive director is there to do is to direct and not to control. You have people with lots of different spheres of responsibility and you get information to them that helps them do what they want to do. They tell you what you’re doing. And you take all the parts and you say, “OK , maybe this needs to be modified in order to work a little better.” The person in the center may not have all the information or, just as a single human being, doesn’t know everything in terms of what can be done or what should be done or the organization’s history or facts about the cases. And then, in an overly centralized operation, things tend to break down.
DEAN: You mentioned Georgia is working in the Portland office with Rachel Andreas. Does that mean the others are all working elsewhere?
TREXLER: We do have people who have been based in other locales. But we’ve been interacting regularly. We have meetings at least once a week, sometimes multiple times a week. And we keep in touch regularly on email. And everybody has my text number if they need to get in touch very quickly. We do what people do in organizations just in terms of having ways where if we need to be in touch for something, we can get in touch quickly. We try to stay in regular contact. That’s vital from our perspective.
DEAN: I don’t see any of these people listed on your 990 form, and I assume that’s because the salaries for each of them falls below the reporting threshold, but they must add up to a chunk of change, I would think.
TREXLER: Ehn … I’m having to go through that with Georgia now and it’s much less. I don’t want overstep my bounds in terms of what I’m allowed to say or not allowed to say with regard to internals, but I can tell you that it’s a lot less than what people would imagine. This is an organization that has been running pretty lean in terms of staff. It’s not something that is throwing lots of money around.
DEAN: OK, you can’t reveal specific people’s salaries, but maybe you can give me an idea of what the total is for compensation for all of the staff.
TREXLER: I know I have a call this week to talk financials. We’re preparing our Form 990. [Trexler was later able to confirm that the combined compensation for staff was less than the IRS reporting threshold for a single employee. That threshold is $100,000.]
DEAN: While we’re on the subject of salaries, as interim executive director, will you be paid the salary budgeted for former director Charles Brownstein? Charles’ annual salary of approximately $125,000 was already an area of controversy even without the harassment accusations, since it seems to be at the upper end of the pay scale for nonprofit executive directors, even though CBLDF is a small organization with minimal staff. The executive director’s salary is CBLDF’s largest annual expense. Is that something you may revisit as you consider reforms for the organization?
TREXLER: Executive director salaries are always a sensitive issue. They can vary depending on a range of factors, such as location, size, mission, programs, required skills, and the executive director's experience.
Back in 1996, around the same time I was leaving my 9th Circuit U.S. Court of Appeals judicial clerkship to start practicing tax-exempt organizations law at a firm, Congress enacted § 4958 of the Internal Revenue Code to give organizations an added incentive to make sure that their level of compensation is reasonable. To minimize the risk of incurring the § 4958 tax on excess benefit transactions, an organization should document the reasonableness of its salaries with applicable comparability data. For an organization with annual revenue under a million dollars, this entails gathering “data on compensation paid by three comparable organizations in the same or similar communities for similar services.” (Treasury Regulations § 53.4958-6(c)(2)(ii).)
I'm in the process of reviewing CBLDF records now – if there was no documentation of comparability data in the past, I will recommend it going forward. My sense from having worked with nonprofits as long as I have is that $125,000 plus benefits (e.g., health insurance and retirement contributions) is likely to be considered a reasonable salary for heading a legal nonprofit in similar circumstances to the CBLDF, particularly if the executive director is an experienced nonprofit manager or an attorney. $125,000 is less than the starting salary for new law-school graduates at many law firms; if the CBLDF wants to attract an executive director with the requisite expertise to address the organization's core legal concerns $125,000 plus benefits will seem low but possibly acceptable for mission-driven work.
As for myself, when the issue of compensation was raised I proposed receiving less than Charles – so much so, in fact, that it will fall well under the mandatory $100,000 reporting threshold on the CBLDF’s annual Form 990 tax filing. It’s a fraction of what I would receive for client work in ethics advising, especially if the organization requires turnaround services in connection with an ethics crisis, but I wanted to send the message that just as I wasn't doing this for the long term, I wasn't doing it for the director's salary and benefits either.
DEAN: It seems like there’s a wide range of salaries paid to nonprofit executive directors. I’ve been checking various job sites like Glassdoor.com and Payscale.com, and they all list average salaries for nonprofit executive directors well below what Charles Brownstein was making. I don’t know how accurate those sites are …
TREXLER: Part of the problem with averages as a heuristic is there are a lot of organizations in the nonprofit world where you have an individual who’s created a nonprofit. It’s a relatively small nonprofit. They don’t have much money that’s coming in. They don’t really pay their executive directors anything, and if they do, it’s a really small amount. The nonprofit sector is huge. It’s a huge incentive to get registered as a 501(c)(3) to get recognition because of the tax-exempt status. And so there are millions of organizations over the years that get into the data set. You have the smaller number of organizations that will be paying executive directors part-time salaries for full-time work and a lot of organizations that don’t have a lot of money that are basically the bulk of the data pool.
When you’re dealing with an organization that’s located in a greater metropolitan area where people are working full-time and people are working in the legal industry or dealing with a particular issue that’s sort of a sector-wide issue like a book or comic, you’re just dealing with different levels. I haven’t found a salary comparison yet in terms of the records, but I’m absolutely going to keep looking for one. [Trexler was ultimately able to find only records indicating that the executive director salary had been set in comparison with a reported average but was unable to find the source of the average.]
You could find plenty of instances to show that what the CBLDF was paying for its executive salary was at the lower end of the scale. In the world that I work with in nonprofits, people are paid $400-, $500-, $600,000 a year and they’re doing a lot of the same type of work that I’m doing now. Of course I’m not getting anything close to that. Charles wasn’t getting that. I could pull examples of organizations where that’s what people are getting.
But I understand why people are upset about it — in part because it reflects the detachment. People weren’t seeing the value in what they were receiving, right? They were seeing cases that they didn’t relate to. They were seeing an increasingly remote presence. You’d go to panels and hear the same thing over and over again about the 1950s. And most people now weren’t even alive in the 1950s. So the dissatisfaction with the salary is in part with the level of the salary, but it’s also a dissatisfaction with the organization itself. That part stands in for the whole.
Going forward, what I’d recommend for the organization to do is there needs to be a comparable-salary review. Take a look and see what other organization directors are paid for similar work, particularly in the legal sphere, particularly in a sphere where it’s rights-orientated as opposed to other types of organizations where they have a different funding model. They have lower levels of organizations. They have higher levels of organizations. Sort of get where we are in the spectrum of legal organizations and make sure that we have a salary that reflects those norms. That’s something I have planned to do.
DEAN: If your policy, in the past at least, was to find three comparable companies — and if you’re in that range you’re OK — then if there is such a wide range in the salaries paid to executive directors, it seems like it wouldn’t be hard to find three companies that pay whatever you wanted to pay to start with, if you see what I mean.
TREXLER: Oh, I could find three companies that pay three to four times that.
TREXLER: But the thing is, when you’re making that kind of adjustment, if you’re managing an organization, your goal is not just to pay as much as you can. You’re part of a system. You’re thinking of: What will the organization bear? What will the community bear? What kind of message are we sending right now? Who are we trying to recruit? Will the salary become more of an obstacle? If you’re paying a certain amount of money and people aren’t donating because of the level of the salary, then even if that salary is comparable, that salary is problematic, right? If people aren’t donating, then you can’t support that salary over time. It has to be sustainable. So everything has to find its level. When you’re doing the calculus, you’re thinking about all these different variables. And it’s something that will occasionally have to be adjusted based on the information you’re getting from the community, based on the information you’re getting from prospective hires. It’s a challenge, something that nonprofits have wrestled with for years. And it’s an interesting one, and I’ve been thinking about this a lot going forward because when I’m thinking about the new executive director, I want to make sure that we can attract really good talent, right? You want to make sure that you’ve got somebody in here who understands the law, who understands fundraising, who understands management, and not just the talents of it but the ethics of it, and who also understands the comics community and that’s asking for a lot.
DEAN: I just would point out that none of CBLDF’s executive directors have had that in the past really. None of them were lawyers. None of them had experience running nonprofits.
TREXLER: Uh-huh. … We’re just not at that level. We’re not an organization that has an unlimited amount to spend on executive salaries. It’s just not in the cards right now.
DEAN: Well, you have attorneys on retainer, right? So the executive director doesn’t …
TREXLER: The problem is … Here’s the limitation: I’m a little bit of an exception to the rule even though I concentrated on nonprofits early on. Most nonprofits don’t have a lot of money, and even those that do, try to economize. A person who does what I do in nonprofits law has to be a generalist. You have to understand the entire scope. I could teach securities law, tax law, antitrust, bankruptcy, basics of nonprofit management. I even taught computer science for nonprofit organizations back when I was a chaired professor of social entrepreneurship. So I’ve had to spend a lot of time learning a lot about a lot of things in order to be able to jump to different parts of an organization and try to handle them as adeptly as someone who is a dedicated specialist in that particular field. That’s really rare in law. Most lawyers tend to be specialists, so if you conceive of yourself as a First Amendment organization, you’ve got to hire somebody who’s really well trained in free-speech law and put them in even if they don’t necessarily have any experience in nonprofit law. Or you may hire somebody who’s in intellectual property or somebody who’s in corporate law, or hire somebody in securities law, or nonprofit law even, depending on if you get somebody who’s more narrowly trained than I was. And they will know part, but they will not know the whole.
So what you’re trying to do when you’re piecing together an organization or you’re making a hire is you put the different skill sets that you need and knowledge bases that you need and the sort of ethical commitments that make up the sort of personal style that you need. And you try to check as many boxes as you can with the budget that you have and hope that it works. When you aren’t able to get that in one individual, that’s when the team comes into play. And then you start thinking, I’ve got volunteers here, I’ve got part-time staffers here, I’ve got full-time staffers here, I’ve got the community here that may be able to help in some ways. Sort of how can we fill in these holes so that we may not have one person who has everything, but we have a person at the top who has enough of what we need for maybe two of the three? And then we can fill in the rest later, make the system interact with the director so that those gaps are met. And as we refill the board, that’ll be part of it too. What are its skills in terms of knowledge base that the board members are bringing in? What are the connections to the community that the board members are bringing in? So that they can, through their volunteer time, fill in some of those gaps as well. So building an organization requires a lot of insight into not just how organizations work but how they interact with their community, how they interact with the industry where they’re working. It’s a pretty heady job.
DEAN: Yeah, for sure. Do I understand that you would report the specific comparable companies that are used to support the CBLDF executive director’s salary?
TREXLER: Meaning …?
DEAN: That is, would it be on your 990? Would you in any way make that public?
TREXLER: I’ll take a look. This is one where I really do want to look at the regulations again just in terms of what is normally disclosed. But the way that I see the law is it’s a floor not a ceiling, so if the regulations say those comparables don’t have to be disclosed — and I just have to refresh my memory — I’ll talk to people about disclosing it. [Trexler later determined that, although comparability data must be available to the IRS on request, it is not required to be disclosed publically. He added, “I’m recommending total transparency in this regard.”]
DEAN: Would this be full-time for you? What are you leaving to take on this job? Are you taking time off from teaching or a legal practice?
TREXLER: My position is defined by services, not hours, but as anyone who knows me well can attest I take my work seriously. I'm spending a substantial amount of my time on the CBLDF – it's my primary focus now. [Trexler confirmed that he is also continuing to teach a course.]
DEAN: Will you be operating out of Oregon or out of New York? You described developments in New York sexual harassment law, where you have been working with the Fashion Institute, but if CBLDF remains in the Oregon office, what sorts of legal reforms would be applicable in Oregon?
TREXLER: I'll be working out of New York for the foreseeable future, but I'm in touch with our Portland office on a regular basis, with meetings at least once a week and ongoing contact via email. The Portland team has also started digitizing the CBLDF's paper records so I can review earlier material without having to travel to Portland.
Oregon recently enacted its own post-#MeToo legal reforms. The text of the law can be found here.
My understanding is that the CBLDF has consulted with local Oregon counsel in the past, and when the drafts of the new ethics policies are ready for review it would be appropriate to have one or more Oregon attorneys give them a look.
More generally, I tend to approach state and federal law pertaining to ethics as a floor, not a ceiling. If something is allowed under federal law or the law of a particular state that is nonetheless unethical, the legal lacuna should not be treated as a Get Out of Ethics Jail Free card. Self-regulation needs to fill the gap.
DEAN: Can you say briefly what B/HI does and how much it costs?
TREXLER: Oh, yeah. I’m just getting the information on that. That was all set up before me. B/HI is a communications firm. Here’s what BHI has been doing: I meet with them regularly. I tell them “Here’s what I want to do, what I’m going to say. I just want you to be aware of this. And they have been great. I have not been told not to say anything, which is not common. A lot of people, they are given scripts. [The initial term of B/HI’s contract has since come to an end. Trexler reported: “The arrangement is now on hiatus, so the cost is zero.”]
DEAN: Maybe you’ll have a better idea of this after you go through the financials, but is there an overall price tag associated with the proposed changes that you’ve made?
TREXLER: What I’m trying to do with respect to these changes is to make them as cost-effective as possible. From my perspective, particularly when you do what I insisted we do when I came on board — namely, suspend fundraising appeals. Other than artists who’ve very generously donated art for us to sell —which we really appreciate, the commitment has been fantastic, and so we’ll keep selling that material to people in the community who want that material — but in terms of fundraising, I came in and on day one, I said I don’t think you should fund-raise. We need to rebuild trust. Money is information. We’ve got the information loud and clear, so let’s not do appeals right now. Let’s do what we can in the most cost-effective way possible, provide as much free help as we can and go from there, so when the new executive director comes in, they will have the resources to do what we’ve been building toward during my time here. That’s kind of the goal.
There are a couple of mistakes that organizations make when they’re in the kind of situation that the CBLDF has been in. One of them I talk about in the article: Don’t just assume you can hire your way out of the problem, that all you need is to hire somebody permanent, which is a word I hate for an executive director. An executive director should never be seen as permanent. Hiring new long-term leadership could just be creating a new set of problems or repeating the old set of problems if you do not have the institutional capital. I do not mean money; I mean patterns of interaction, connections among the people, connections with the community. If you don’t have that institutional capital, you bring in a new executive director and you’ve just got the same problems, most of the time it’s going to happen again. So you don’t want to hire your way out of a problem; you’ve got to build your way out of the problem in terms of restoring trust.
The second thing you don’t want to do is spend your way out of a problem. I’ve seen organizations do this: They get in a crisis, so they’ll just spend all their budget on crisis communication, they spend all their budget on putting in somebody else to do something and then they have no money and they have to fold because they spent everything trying to recover. To help CBLDF avoid the trap of trying to spend its way out of a problem or hire its way out of a problem, that was part of my motivation for offering to do this. The approach that I have is rooted in responsibility, it’s rooted in sacrifice, it’s rooted in service and it’s rooted in giving other people power and responsibility. And I will be honest with you: That kind of thing is rarer than one would hope when it comes to doing turnarounds, when it comes to doing crisis management.
TUCKER STONE: Do you see yourself as a public voice for the CBLDF? Last March, you posted several tweets regarding the "constructive potential" of NFTs (non-fungible tokens) from the official CBLDF Twitter account, which attracted some opprobrium from cartoonists on the platform. Is it part of your role going forward to offer exploratory comments on issues such as this?
TREXLER: First, thank you again for the thought-provoking questions. I’ve come to view TCJ as a place to work through new perspectives on cutting-edge issues, and these questions take me back to when you first invited me to write here ten years ago, as it happens on the future of the Comics Code Authority seal and the CBLDF. A lot has happened since then, not least of all the rather unexpected shift from my being a disinterested third-party opining that the CBLDF had lost a battle it claimed to have won to being seen as a spokesperson for past decisions I’ve publicly critiqued.
I’m not, nor do I feel any pressure to defend everything the CBLDF has ever done. When I was brought on as Interim Director I said it was essential for me to maintain an independent voice even as I helped the CBLDF move to its next phase, and maintaining that Adam Strange person-of-two-worlds vibe continues to be a priority. One reason for that is the nature of the transitional position I chose to take, but it’s also integral to much-needed institutional reform.
I’ve learned a lot about the CBLDF’s past choices, with the most important lesson being that the organization must never again be dominated by one person. In keeping with that reform agenda, I see the executive director as a public voice for the CBLDF - not “the,” but “a.” It also has an amazing staff – they’ve been speaking at our events and posting on our site; our director of operations has been developing a more transparent and responsive organizational infrastructure; and our education team has been at the forefront of our efforts to keep graphic novels from being removed from schools. We’re all involved in the drafting process of our new ethics policies, which were the subject of a panel back in March and will be posted for public review after everyone here has had a look.
One of the real strengths of the CBLDF is that its commitment to free expression is consistent with a multiplicity of voices. There will be times when we do not have the same point of view, and I think it would be great for there to be a public discussion where the CBLDF's next steps on a particular issue are worked out in real time in conversation with the community at large.
This gets to a broader point regarding nonprofit communications and what it means to be a public voice. Nonprofits collectively pour millions, perhaps even billions of dollars into developing what each organization hopes will be authentic messaging. The main reason much of it doesn't resonate is that smoothly polished statements stripped of a personal sensibility create anuncanny valley of words, as univocal PR seems inherently inconsistent with a domain said to embody a Tocquevillian participatory ethos.
The interactive nature of contemporary media only reinforces that tension. Marshall McLuhan observed that the initial content of a new medium is the old medium it’s replacing, and we see that in full display in how we’ve been conditioned to see statements by nonprofits on social media. Twitter, Instagram, Facebook, TikTok – these spaces are organically designed for a digital dialectic, coded for comments and responses to challenge and engage. Yet we’re still accustomed to seeing nonprofits treat social media posts as static press releases. It’s long past time for this to change.
That's what's behind my tagging social media threads with my initials. Each news update, reflection, or legal explainer is an invitation to discussion, not a diktat from on high: "Here are information and ideas from someone in a position to help the CBLDF help you; thoughts?" Social media, websites, podcasts, streaming video, even convention appearances - they work best as interactive platforms for all of us to work through what's next.
TUCKER STONE: You later mentioned that "[e]xplanation does not equal endorsement", but is there a potential that posts such as these might be read as official positions of the CBLDF?
TREXLER: One of the inevitabilities of explaining the law is that someone will see the explanation as a point of view. Today’s posting algorithms reward quick looks and hot takes, so I’m going to work even harder to make even more clear that an explanation is just that.
Legal explainers are an integral part of meeting the community where it is today. At a time when technological and financial barriers to the comic arts are lower than ever before, the CBLDF is in a unique position as a comics charity to make useful legal knowledge accessible to all.
This includes both fundamental principles and emerging issues, such as, well, NFTs. They’re not a topic on which I’d planned to write; the hype surrounding them reminded me too much of the worst parts of the ‘90s. However, I started to talk to the staff about writing on the subject after hearing questions from numerous comics professionals. These questions only increased after the $1.8 million sale of unauthorized Wonder Woman NFTs generated the inevitable response.
Ironically, my main concern when starting the NFT threads on Twitter was that they would come across as too negative. My frustration with the excessive boosterism led me to open with the phrase “NFT BS”; I criticized how the NFT bubble was making a category error in treating the NFT’s main use case - establishing provenance - as a thing of value in itself regardless of the object to which the NFT refers. From there I noted other potential problems, such as market manipulation, environmental harm, IP infringement, money laundering, and the broader impact of an NFT crackdown on artist alleys and commissions. To provide balance, I also noted responses to these critiques and discussed the potential impact of recent developments on the comics industry.
That’s the context for my observation regarding “the constructive potential of the NFT moment.” The word choice was deliberate - I was expressly referring to the attention now being given to NFTs, not NFTs themselves. The gist was that whatever happens with the hype surrounding NFTs, here are the legal concerns that really matter. That’s why the thread went on to highlight the more fundamental issues: contracts and IP rights, especially pertaining to commissions and digital original art, with the central point being that a written contract provides stronger legal protection than social norms. Whether or not that’s an official position of the CBLDF doesn’t really matter;it’s something every lawyer learns in their first-year contracts class.
TUCKER STONE: Does social media feedback affect how you frame issues in a less ephemeral form, such as an informational document? Will social media feedback affect the final version of your NFT FAQ, for example?
TREXLER: Social media feedback is definitely useful for longer-form writing. As I’ve said to my students for years, I’m far more interested in hearing other perspectives, since it’s harder to learn from mere agreement.
With regard to the NFT FAQs, my recollection is that the response just about doubled the length. I wanted to be sure to address everything with a bit more detail, and it’s likely to double again before I’m done. NFTs are being sold by creators and companies around the world, and many more in the comics community still have pressing questions and concerns. As it would be for any other emerging issue, now’s the time for informed in-depth analysis.
I've also been thinking a lot about how the perception of rights and responsibilities has evolved since the 1970s and '80s, the formative period for me and I suspect many others in the industry. Just as the '90s gave shape to the preceding discussions through discrete institutional forms, it's likely that we're approaching a new series of institutional shifts. Much of this analysis will no doubt go well beyond the scope of the NFT FAQs, but that’s a conversation for another day. What’s most relevant for purposes of the present discussion is the fact that feedback does make a difference.
For an organization founded to be representative of and responsive to a diverse creative community - such as the CBLDF - being open to exploration and robust debate is vital. It reinforces the organization's core values while helping initiatives adapt to the community's evolving needs. It is or at least should be the future of nonprofit leadership, and my hope is that we can help make it a reality here.
DEAN: Can you give more details about how you would like to see the Fund expand its mission? What are examples of the kinds of cases or issues the Fund might take on that aren’t currently included in its focus? I assume the board needs to approve any changes to its charter. Is everyone on the board in agreement about expanding the mission?
TREXLER: As I explained in my post, Mission: What's Possible, the CBLDF can do a lot more to fulfill its existing chartered mission than some believe. The notion that the CBLDF is limited to a narrow set of First Amendment cases and anti-censorship initiatives can be traced to an earlier misinterpretation of the mission propagated in response to requests to help defend against the Cody Pickrodt defamation lawsuit.
The assertion that the CBLDF's commitment to the First Amendment prevented it from intervening in a defamation lawsuit always baffled me, since the First Amendment has long been a factor in defamation cases; it's why the defenses available to defamation claims are often stronger in the U.S. than other countries. When I started as Interim Director I looked for the legal opinion explaining the purported limits on the CBLDF's work only to discover that no such document exists – or if it does, no one here can find it.
I see what needs to be done with regard to the CBLDF's mission less in terms of expansion than clarification. At base, the reason the misinterpretation seemed credible lies in the phrase “constitutional rights pertaining to speech and press.” This encompasses First Amendment cases, yes, but it also extends to contract rights, IP rights, rights connected to the regulation of international trade and interstate commerce, and other aspects of what are traditionally referred to as civil and political rights. I'd also argue that the phrase “constitutional rights” includes rights under state constitutions, not just the Constitution of the U.S.
Still, the misinterpretation did arise, so the first thing I want to do is resolve any apparent ambiguity in the CBLDF's chartered purpose. One element of this will be to redraft the purpose to mirror the relevant tax-exempt purposes in Section 501(c)(3) of the Internal Revenue Code (i.e., charitable, education, and literary purposes), with a degree of bounding to keep it within the comics sphere. The new chartered purpose might also include examples of several types of activities seen as fulfilling that purpose, though that list would not be exhaustive.
As for what I'd recommend we do that the CBLDF currently isn't doing, I've been working on that. An announcement will be forthcoming once more details are in place, but what I can say now is that we should be doing a lot more to give creators, retailers and others in need the legal tools they need for their work.
DEAN: It would still help me if I could hear a concrete example of a kind of case or issue that you feel CBLDF should be tackling that it currently isn’t taking on or hasn’t been for a while. Can you give me an example?
TREXLER: Doing the sort of thing that I did with SPX, for example, where there were people who had questions about contracts. Were they questions about obscenity law? No. They were questions about: They got a contract. They want to review their contract. They want to understand what it’s saying, how it affects their rights. Creators’ rights have been something that the comics community has been concerned about for years. Traditionally, people often see it as an us-versus-them thing, creators versus publishers. And I know that there are situations where that’s happened in comics. C’mon, I started writing about comics online in 2005, and if anybody understands about how things are in terms of those relationships, I get it. I’ve read The Comics Journal over the years. I understand creators have been trying to come together and protect their rights for decades. I’m very familiar with the history. But we’re at a point now where there’s a lot of democratization in the comics community. Legal issues are not just for lawyers, and in a world where the barriers to becoming a creator, a publisher, producer or seller of licensed merchandise is lower than ever before, familiarizing oneself with the law has become a universal imperative.
Even if they may not understand everything that goes into a contract, may not understand the contractual language, they know that it’s important. They know it’s not something they could just sign and trust that everything’s going to be OK. It’s not just big company/small creator. When you have two or three or four creators coming together to do an indie book, to do a self-published book, there needs to be a contract amongst themselves. They need to be concerned about intellectual property. They need to be concerned about taxes and security and Kickstarter law, the law of crowdfunding, all that sort of thing. And so these are constitutionally as much a question of rights as obscenity law. These are core issues of rights. These are core issues of access that the comics community has been dealing with for years.
You look at the civil rights law, historically, civil rights law was originally conceived as contract rights. That everybody needs to have the same right, the same power, the same privileges of contract in the United States. That is in the Civil Rights Act of 1866; it had specific language in that article. And so, when you think about it historically, freedom is associated with the right to contract. That’s a powerful statement. That is something that is at the heart of who we are as Americans. The freedom to associate is tied up with the freedom to agree, to connect, to have access to the marketplace. So, to be able to help people with these various issues, to me is incredibly important.
DEAN: So, would a comics artist be able to approach CBLDF and say, “Is my contract fair?” — approach CBLDF for legal advice on stuff like that?
TREXLER: Well, what I will do is say, “Hold this space.” Because I’m very open about the fact that I think that the CBLDF needs to be able to expand — well, I actually don’t even think about it as expanding a mission; I know people have used that language. I think that that’s at the core of what we’ve been about from the beginning. You talk about constitutional rights, the right of access and contract, that’s at the core. That’s why the obscenity cases were so appealing to people, because it affected their ability to enter the marketplace, it affected other people’s ability to say what they want in comics and read what they want in comics. So, this is part of who we are. It’s why law is so compelling in the comics industry. Do I think that it’s something that the CBLDF can and should be doing? Yes, and I’ve been very open about that. What is the CBLDF going to do? Well, the first part of it is I’m going to be writing about it more, I’m going to be speaking about it more. Anybody wants me to have a panel on it? Email me, and I will join you. But in terms of other, more structural ways of dealing with it? What I’ll say is, “Watch this space,” because I have something in the works. And we’ll see how that goes, so I don’t want to go into the mechanics yet, but it is something I’m working on.
What I can say is, look what we’ve built over at the Fashion Law Institute. It’s something that shows the power of the pro bono clinic model to work with people throughout an entire industry to help people who want to be designers, they want to be models, they want to be in cosmetics, they want to patent something, they want to trademark something, they want to understand how copyright works. They deal with lots of different cases. One of the things that’s a model for me in terms of what I never want the CBLDF to do again was, there was a situation a couple years ago where people had questions about a defamation case. And this meme started going out that CBLDF can only do First Amendment, it can’t do defamation. And I’m sorry, but I’ve worked on defamation cases, and if you look at the heart of a defamation lawsuit, the reason why there are carveouts in the United States about what is and is not defamatory speech comes down to the First Amendment. So, the idea that that was somehow exempt from our mission, there was a reason why people didn’t trust that response. The reason is that people got intuitively what lawyers know in fact, which is that the First Amendment is an integral part of that. And it should’ve been addressed. There was a way to do that. And I know that there’s a prudential concern — prudential in law is practical — so there’s a practical concern about, “Is CBLDF gonna be jumping on the side of this person versus a company or this person versus another person in the comics community.” There’s a way to do it so that you can connect people with legal advice, but you’re not in a position where you’re looking like you are the arbiter of right or wrong in every litigated circumstance. There’s a way that you can help people in these situations that navigates that so that you are providing solid legal help through people who are in your network. So that the people in your network are providing that legal help, and you’re facilitating that but you’re not necessarily becoming the litigation surrogate for everybody in the comics industry. Or you’re not in a situation where you’re getting into this oppositional framework. I’ve been part of things where there’s a very harmonious relationship between industry and people wanting to get into the industry, people who wanted to build in the industry. There’s a lot of common ground that can be found, and there is a way to navigate this that avoids some of the problems that have frankly plagued the comics community in the past.
There have been a lot of things that shouldn’t have happened in comics. And it’s been painful to watch. But it’s been an education for me that’s helped shape my approach to law, what should or should not be done. And I’m really hopeful that I can take the lessons that I’ve learned from comics and other industries and use them to help the CBLDF give people the tools they need in order to do what they want to do more effectively.
DEAN: There have been cases in the past that I’ve covered that had to do with dilution of trademark, things like that. I’m trying to remember if CBLDF became involved in those cases. I know a cartoonist who called himself “King VelVeeda” was sued by...
TREXLER: Yeah, you had the Starbucks thing with [Kieron] Dwyer. And that’s part of my sense that they have left their history. Other than a couple of parties at San Diego ComiCon, the one formal CBLDF legal thing that I had attended was back in 1996, Venice, California. They had a little information session for the Paul Mavrides case. And it was about tax and art and sales tax, so it was really interesting to me to hear about that case. But then the CBLDF left that; that just disappeared, and after that was successfully done, even though it remained on the website. I’ve already helped with some intellectual-property stuff since coming on here. I’ve been helping, facilitating quietly. I have taken the position that sometimes there are cases where you can get a better result if you do it quietly without publicity than if you respond by taking it public, like “We’re doing this! We’re gonna take those people down!” Sometimes you want to think about the effect you want to have. Do you want to prevail in this thing, do you want to help the creator, or do you want to publicize it? Sometimes publicity helps, but there have been instances in which, quite frankly, you’re able to get more things done without the publicity.
DEAN: You mention trying to avoid taking sides in a litigation. Does that mean that CBLDF would be prepared to offer advice to both sides of a litigation?
TREXLER: Well, there’s a thing in law known as conflicts checks. What you can’t do is put yourself in a position where you are helping both sides. If you’re helping both sides, the temptation would be to sort of shade the advice that you’re offering to either side, because of your relation to the other. There are people who work with both sides in the mediation context, where you’re not representing any side, but your whole point is to mediate the conflict, whether it’s litigation or just a dispute that’s outside of litigation. And that’s how a lot of harassment stuff is done, through pre-litigation mediation. And even when you go to court, typically the first thing a judge will tell you is that you have to try to mediate this first. So, that is built into the system. If we’re not formally serving as mediator, we couldn’t be in a position where we were saying, “Here’s one side, here’s the other side, we’re gonna connect you with a counsel to both sides and see which one wins.” That would be just serious ethics problems in terms of facilitating legal assistance.
DEAN: So, you wouldn’t be in a position to advise both sides. Would you be in a position to advise either side? That is to say, whoever approaches you first? Like, let’s say Cody Pickrodt came to CBLDF and asked for some advice.
TREXLER: In any situation like that, there would need to be some kind of consensus as to the particular case involved, the issues in the case involved. It’s not typically about first to file. Everything would be done on a case-by-case basis. So, that would really be one where we’d look at the team and say, “Is this one we want to do?” As for contracts, intellectual property and other business matters, a lot of what you’re doing in transactional law is you’re trying to avoid a breakdown, so you create a bunch of rubrics to resolve things so there isn’t going to be a dispute that needs to go to court or arbitration or mediation. And the other thing you’re trying to do is, if a judge gets to that point, you have a number of decision-making rules so you’re leaving as little to the discretion of the decision-maker as possible. So, things are automatic. You’re trying to assign all the rights and rubrics ahead of time so that everything’s predictable. That’s a key part of doing a contract. There is a point where you’re writing contracts where people who are all part of the contract have an interest in a thing coming out in a certain way. They may not have the same goals in every way, they are obviously working at opposite financial interests, but there’s an extent to which it can be helpful to have as much transparency as possible from everybody involved — from creators to retailers to companies and even fans, cosplayers, merchandisers — where everybody knows more and more and more about the legal framework so that everybody involved can be educated in the transaction so that where there are areas of difference where things can be negotiated at a granular level, that they can really focus on that.
There’s a way to integrate the educational experience and educational outreach with the formal type of legal assistance that we’re talking about here. If we can level up our educational outreach ... I understand the Wertham stuff. I’ve read Seduction of the Innocent multiple times. I first read it when I was in high school. I get it. I get the importance of the 1950s, but Fredric Wertham is dead. He’s gone, and we have a different culture, there are different concerns. And right now, the rights of creators, the rights of retailers, the rights of licensees, the rights of licensors, this is the lingua franca. This is the concern that everybody has coming into the industry, and so if we can create an educational environment where the areas of common interest are being explained in terms of what’s understood, in terms of what some of the challenges are, in terms of the way things are developing, then I think the CBLDF will be more useful to the community. And I think that’s going to be key to restoring trust. We can provide that information.
It’s the sort of thing I’ve been doing in my panels over the years. I’ve done panels on law and fashion, and people who are in the fashion space know that I’ve done whatever I can to talk to people about this issue and make legal advice available by connecting to attorneys or doing what I can to help people with that. It’s something that I’ve done in a limited way in the comics community in terms of helping individual clients in the comics world. But I think that’s something that we can do at a more serious level, a more sustained level, a more comprehensive level through the CBLDF. I mean, shoot, the last panel I gave in person — in 2020 — was at PAX East talking about video games. Reaching out to people who have this interest and giving them those legal tools is at the heart of what I do personally and at the heart of what I’ve done organizationally for many years, and if I can do this in comics, in this community which has shaped me since I was a kid, it would mean a lot.
DEAN: Could you say more about what a “distributed systems approach” is and how it would ensure oversight of the executive director and staff?
TREXLER: My approach to organizational management is influenced by systems design. Complexity, engineering, neural nets, sociobiology, information theory, design rhetoric – I learn and adapt what I can. I could talk about all of this for hours, as some readers can no doubt wearily attest, but for the present purpose I'll just give a summary overview of what I have in mind with a minimal amount of technical language.
Given the centrality of purpose to nonprofit identity, it's not uncommon for a nonprofit organization to gravitate toward a strong executive director who conveys a sense of control. Systems can seem unwieldy, unpredictable, even dangerous, but centralized control offers the assurance that there's someone who can keep everything on track. This, however, can be a mistake – a powerful founder might help a new organization establish a coherent identity, but as an organization grows, concentrating power in a single individual can impede its ability to function and adapt.
The simple difference between the one and the many is at the heart of the institutional change I'm trying to bring about at the CBLDF. Practically speaking, it means that the executive director should not have all of the power but rather facilitate interactions among the organization's various agents, each of whom processes information and makes decisions within their respective spheres of responsibility. As part of the facilitative process the executive director will typically have the authority to counter others' decisions, but the more the executive director seems to arrogate absolute control, the greater the likelihood that an organization with a sufficiently developed institutional infrastructure will treat that executive director as a problem.
One thing that's become quite clear to me since taking the Interim Director position is that the CBLDF has been operating at a severe institutional deficit. There were staff members with different positions, yes, but they seem to have been relatively siloed, with information and decision-making for the most part concentrated at the top. Staff members sometimes did not know about actions taken in their respective areas until after those actions were public. The board likewise had limited access to important information about the CBLDF's internal operations, which reinforced the centralization of power and reduced accountability. Equally important, it seems that over time the comics community increasingly felt detached from the organization, with little to no connection beyond fundraising and attendance at the occasional panel.
Developing a strong institutional infrastructure is an immediate priority. With each new task or initiative I'm working to make it standard for the executive director's first move after assessing information to be to connect with someone else. As for the comics community, increasing transparency is the first step toward greater involvement, but it is by no means the last.
Establishing more open information flows throughout the organization and beyond will also contribute to more effective oversight. The staff should be able to express concerns free from fear of retribution, just as both the staff and the board should know more about what is happening throughout the organization. Clearer channels of communication for the comics community to express its own concerns will help as well – other perspectives should be seen as useful information, not as a nuisance or threat.
There's more to all of this, of course, but I hope this provides a sense of the core dynamic. The hope is that by the time I leave, there will be sustainable patterns of interaction that will move the organization forward with inertial resistance to unfettered control by a single individual.
DEAN: You plan to set up “external oversight” of the sexual harassment reporting process, but you also described how third-party mediators and investigators are often beholden to the hiring organizations for work. How would you get around that potential problem?
TREXLER: As I told the board and staff when I started, we need to create an ethics framework in which our checks and balances have checks and balances. My approach is to create structures for review by individuals without a direct stake in the process. To a certain degree entirely eliminating the instinct for self-preservation is impossible, but it's also possible to encourage reviewers to have an independent voice. In addition to formally integrating outside review into the harassment reporting process, the organization could also benefit from more actively consulting members of the advisory board for their perspective on ethics concerns.
Another safeguard would be a reporting mechanism that would prevent harassment reports from going unnoticed. As I explain in the article my aim is to balance the ethic of transparency with respect for the victim's sense of privacy. Giving the victim the right to request and to disregard an NDA reflects this, but I also want to establish transparency standards that respect privacy interests while also letting the public know that ethics-related incidents have occurred. For New York, I proposed that all corporate entities be required to disclose the following, anonymized so as not to place complainants in jeopardy:
- *A summary of harassment policies;
- *The number of harassment reports and alleged repeat offenders;
- *The selection of either internal or third-party investigators; and
- *The resulting disposition of complaints, including monetary settlements and employment status of complainant and accused.
I anticipate proposing a similar rubric for the CBLDF.
Beyond ethics policies, it’s equally important to establish structural safeguards against the collective-action problem that social critic Reinhold Niebuhr described as the tendency of groups to exhibit a collective immorality distinct from the moral convictions of their constituent individuals. What I’m trying to do in all contexts is to highlight the potential for problematic group decisions. At some point this too will be formalized in policies, but for now when I interact with counsel, I do so with explanations of both the ethical and legal concerns factoring into my personal assessment. I also emphasize my openness to a free exchange of ideas as to what’s best, even critical of my own or the organization.
Expressing openness to diverse points of view is a small act that can have a big impact on group decision-making. The typical ethic in organizations, especially when counsel are involved, is instrumentalist, the polar opposite of the mandate in Immanuel Kant’s categorical imperative not to treat people as mere means to an end – everything is subsumed to protecting the group as it stands, with nonconforming voices seen as threats. However, signaling that you value diversity of perspective not only lets people know that you respect them as individuals, but it also aligns elements of the organizational design environment normally considered to be at odds: personal ethics, professional advancement, organizational interests and free speech.
DEAN: You say you would recommend eliminating NDAs for those who raise civil-rights concerns. Does this mean CBLDF would have NDAs for other things?
TREXLER: There are some instances in which confidentiality is an ethical mandate for lawyers and legal organizations. A person who comes to the CBLDF for help understanding a contract would not want either the contact or contract posted to the web, and it's common for parties to a negotiation not to have it become part of a publicity campaign. In fact, I've already helped on matters that it would be unethical for me to disclose, other than to say they involved protecting creators' freedom of speech.
A nonprofit board will also typically want staff to keep certain internal information confidential – not just ethics issues, but operational matters. Contractual language in this regard tends to be rather broad, however, so I'll be working on ways to narrow the scope of what's confidential. Either way, I hope it's evident that I personally am trying to be transparent about as much as possible. I won't be disclosing personal conversations or the contents of board meetings, but I will continue letting everyone know as much about our initiatives and internal reforms as is consistent with ethical standards.
DEAN: Is the Fashion Institute a national or international organization?
TREXLER: It’s based in New York, but we work with people all over the world. It’s the first academic center in the world that is dedicated to the law and business of fashion. The founder, Susan Scafidi, literally created fashion law as an academic field and conceptualized it as a field of practice in law as well. And it’s from her work that we had bar committees that were founded. People have been modeling themselves on the Fashion Law Institute all over the world in educational centers. We’ve trained hundreds of people from all over the world who have come to New York to get legal training. And also hundreds — or thousands at this point — through our law-school programs. And we’ve done many, many panels, outreach online as well as in person. So, it’s an organization that has international scope.
DEAN: Just to clarify, as associate director of the Institute, you said, “Our initial efforts at addressing this problem” — which I believe was sexual harassment — “focused on amplifying outside voices from co-founding and advising new organizations highlighting the problem, to developing new industry standards.” Could you be a little more specific about what organizations you cofounded and how they highlighted the problem?
TREXLER: Probably the one that’s most familiar to people is the Model Alliance. That organization we actually cofounded a number of years ago now, and that organization was set up in order to call attention to the issue of sexual harassment in the modeling industry specifically. Being a voice for the models, calling attention to issues, helping corporations in the fashion industry come up with policies. And that organization has gone on to have quite a life over the years in terms of its work in the fashion industry with models. One of my own students — now an alumnus, she’s been out for a while now — co-created an organization called the Humans of Fashion foundation, which set up a wonderful structure for getting people legal assistance. They call a hotline and they can have access to legal assistance, they have access to psychological assistance, if they’ve gone through harassment. So, that’s part of the system. The co-founders are amazing in terms of the work that they’ve built. To be part of that and to have amazing people that have created amazing things, and even to make a little contribution to that in terms of whatever we can do, in terms of advice or assistance or calling attention to what they’re doing, has been a wonderful aspect of my work. You asked for specifics, and those are two organizations that immediately come to mind.
DEAN: I have another question about your work history. You were on the ethics board at the Museum of Comic and Cartoon Art.
TREXLER: I was on the board of directors at the Museum of Comic and Cartoon Art.
DEAN: So, it wasn’t called the ethics board?
TREXLER: No, it was the board of directors.
DEAN: OK. Now, I know from covering it that the decisions that it made were not always ethical, so I’m wondering if you were there in 2008-2009 when it sold off part of the Cartoons Against the Axis collection.
TREXLER: Obviously I cannot speak to specifics, because when you’re a member of a board, particularly one that now no longer exists, there’s only so much I can say. You have to do certain things confidentially when you’re there.
DEAN: You can say if you were there or not, right?
TREXLER: So, let’s just say that I was a member of the board during that time, and we’ll leave it at that. I was a member of the board for one term.
DEAN: So, you were not there in 2008-2009?
TREXLER: No, what I’m saying is, I’d really have to look at my resume. I don’t remember the exact years. If you’re asking me if I was there during that period, then yeah, I was there during that period. But I was only there for one term. I really don’t want to say more than that. But I was there for one term, and then I left the board. Let’s just say, and this goes for any board member, you can’t assume that because a person was a board member that they endorse everything that was done by an organization during the time they were there.
DEAN: I was wondering if there was any way you could talk about some of the abstractions involved. That is, without referring specifically ...
TREXLER: OK, here’s what I’ll do. I’ll talk about some of the abstractions in regards to the Museum of Comics and Cartoon Art. Museums are in an interesting position, because a museum is typically capital intensive. I mean, financial capital — it requires a lot of money. And you can look at the 990s from the period and you can see that you’re dealing with an organization that had a huge investment just in terms of the space it needed to do what it was doing in New York relative to the amount it was generating. So, it was in a bit of a crunch position. Now, in respect to actions, there are rules for museums. It’s one of the very highly regulated areas in New York, and highly scrutinized in New York. And so, things that an organization does when it’s in that position, it’s following a rubric of a regulatory body in New York that pays attention to everything that happens and that actually takes a very interventionist role in museum affairs. You’re not dealing with a relatively unregulated industry, you’re not dealing with something where there’s no oversight in terms of state government. That said, it was an organization that had to deal with a number of issues, and over the time that I was there I did the best that I could in the circumstances to be part of positive developments. To make sure that everything was done legally and as ethically as I could be part of in terms of the decision-making process. But I can’t go into specifics, I can’t go into things that I said or did. I don’t feel comfortable doing that, because at that point in time, it was confidential and unlike the CBLDF, where I am in this position where I exercise a bit of discretion in terms of what I can say and reveal, and am incredibly transparent here. If I were in the same position at MoCCA — I think I left in either 2009 or 2010 — I can’t say specifics, but I can say that it was dealing obviously with some very serious issues and that ultimately you know what happened with it, it ended up folding into another organization, the Society of Illustrators. But by that point I was gone.
DEAN: OK. So, you’re at CBLDF now and you’re charged with turning around an organization that is recovering from a scandal. Have you spoken with CBLDF board members who were present during these previous episodes of alleged harassment?
TREXLER: Yes, I have. And I also have more that I want to speak with. I’m actually going through the documents, taking a look at internal documents, I’ve been getting names of people who were here. I’ve started to reach out, I have more outreach that I’m going to be doing actually every week going forward. So, what’s evident to me — and again, this all happened before me, this wasn’t my decision — is that what you saw was consistent with what a lot of organizations would have done in similar circumstances. That doesn’t make it a good thing, in fact to stop that is a lot of what I’ve been trying to do, basically since the early 2000s when I first started working in this area and it became clear to me how organizations typically handled these sorts of situations where you have a recurring problem.
I’ve worked with organizations where you have people who are truly evil. And I’ve seen really, really bad, horrible people do things. And I’ve done what I can do to stop them. Sometimes it takes a lot of risk and a lot of pain for everybody involved to try to make that happen. Another thing that happens with organizations is you have something where you have individuals, each of whom is trying to do what they think to be the right thing, and that collectively, because of the various factors that come with running an organization and group dynamics, they keep making decisions that end up hurting people or they keep making decisions that have an ethical valence that is no longer in touch with the ethics of their community. And harassment is one where that’s a serious issue, particularly over the past couple decades as the thoughts of what’s been going on has shifted in a dramatic way — in a good way, quite frankly, as far as I see it, the way it needed to be all along — but a number of organizations are playing catch-up in terms of the way they manage things. Because the way lawyers are traditionally taught to handle this is, the lawyer is about shutting up, the lawyer is about telling everybody else to shut up. You protect the clients. You protect the people in the organization. The person who filed the report is a liability risk, you get rid of that person. That rubric, which I have seen again and again and again, from people who if you talk to them individually will say that they would never do such a thing, and then they do it when they’re part of an organization. That’s something that I have been doing everything I can to stop. So, you go back to what we talked about at the beginning of the conversation, about opening up organizations and having multiple eyes and getting opportunities for reporting and having accountability not just internally but externally with the constituency. That’s all part of fixing this problem.
DEAN: Speaking of accountability, I was wondering if there are likely to be any changes in the makeup of the board going forward.
TREXLER: With respect to changes in the makeup of the board, the one thing I do not have any power over as interim director is I can’t get anybody off the board, I can’t put anybody on the board, right? That is not a power that I would have under the bylaws. I cannot change the composition of the board. What I can do is highlight the ethics issues. I can relay what people are saying about the board. I view myself as an information conduit and I can say, “Here’s an ethical challenge. Here’s what people are saying and here’s what people are saying you should do.” I don’t censor anything. There are people who have sent me information saying, “I think the board needs to hear X,” and then I tell the board that. I do relay that. I just don’t have the power to take the action. So, if there’s something you think the board should do or not do, then this is a time when I’m emphasizing the importance of listening to the community. This is one where the community needs to make its voice known, and I really think they have.
DEAN: As far as you know, nobody on the current board is planning to leave at this point in time? You don’t have the power to make anybody leave, but as far as you know, there aren’t any impending resignations?
TREXLER: As far as I know, yeah. Other than the ones that have already left. I was just talking to the team today about making sure we have everything reflected on our website in terms of accurate board composition, so I’m going to be double-checking that to make sure everything’s current.
DEAN: Have you been in touch with Charles at all?
TREXLER: No. It’s like this: This is one where when you have someone leave an organization under these circumstances, it raises all sorts of potential issues, and the cleanest thing to do is I look at what’s written. I have access to all of the records from the period to the extent that they do exist, so I can see what was happening in real time, but, in terms of it becoming personal, it’s probably cleanest if we just leave it at that.
DEAN: Looking at the records, have you seen records of some of the complaints that have been cited in the past? I know letters were written to Larry Marder. Are those part of the CBLDF’s records?
TREXLER: What I will say is this: Under my watch, the recordkeeping systems are going to be enhanced.
DEAN: It sounds like it was quite a mess before.
TREXLER: [Laughs.] Let’s say I’m in the process of looking at everything, and I think there’s a lot more that could and should be done in order to make sure that everything is documented and documented responsibly. One of the first things that we’re going to come out with this month is a document-retention policy. It’s going to be a matter of internal rules. And everybody in the comics community is going to see this. Ultimately, it’s up to the board how it’s going to be done, but the way I like to do things is to do everything sort of publicly. So I believe we need a document-retention policy so that everything that’s ever been submitted is documented and accessible. So everyone in comics will see that there’s a document retention policy. That’s sine qua non. Whatever was done in the past is the past. And it will not be done that way again.
DEAN: OK, but that’s what records are all about: what was done in the past.
DEAN: And it sounds like you’re not quite sure what you have on file and what you don’t have on file at this point.
TREXLER: The staff has been great about digitizing what we do have access to. And I’ve also been given full access to items that came through email, so I’ve been looking through that as well. And what I will say is — and again, I hope you understand the nature of what I do. I’m transparent about everything that I can. I just want to be sure I can say everything I can tell you in terms of maintaining confidentiality. It’s not about having access. I have access to everything in the database that exists, but I haven’t found everything that I would like to have at hand, right? There are records that I would love to have. It’s not clear to me, since they were in the past, whether they exist anymore or whether they ever existed. Obviously, I can’t go into specifics, because they are employment matters and there are limits to what I can say, but what I will say is: I am not comfortable with the level of recordkeeping and I would like to see things become more rigorous and also greater protection in terms of retention and also greater transparency. If you look at what I’ve done with respect to this interview and this article, I don’t know if there’s a lawyer around who will talk as much as I’ve been talking about this.
DEAN: You’re right about that.
TREXLER: The norm is not to share.
DEAN: That’s true. You’re a very abnormal lawyer.
DEAN: What is your timetable for implementing changes, roughly? And has some of it already been accomplished?
TREXLER: The way I approach things with an organization that’s gone through something like this … the first thing you want to recognize is that the organization has gone through a shock and there’s been a managerial style that I don’t particularly share. So, I came in and I said, “Here’s some things that I think that we could do,” and then I stepped back. We held meetings. We had lots of conversations. As people came to us for help, I helped them and consulted with the team along the way. But at no point did I say, “All right, team. We’ve got to get crackin’ and get to it, make sure we hop to it and meet these deadlines right away.” When an organization is in a shock that it’s going through, particularly when somebody new comes aboard, there needs to be a period of adjustment. We need to figure out who we are as a team, who we are as an organization, where we want to go forward. I’ve been doing a lot of work. The team has been doing a lot of work. We’ve been thinking through a lot of these issues. We’ve been talking about these issues incessantly, about how to move forward and exploring all these ideas. So there’s been motion and we’ve gotten done everything I wanted to do within the allotted time frame, and we actually do have an agenda going forward in terms of how we want to get things done. And there’s a lot, quite frankly, that is on that agenda.
There’s a gradual evolution. When you take an organization that’s been through a shock, and it’s lost its connection to the community, has questions about its core identity, trying to regain its footing in terms of its internal governance, you want to go through what one could say is a four-stage process. The first thing you do is you’re re-thinking. You kind of breathe, coming up with: “Who are we? What are we doing? Where are we going? What are our ethics policies? What are our connections to the community?” That sort of thing. Then you do some redesigning. Then you do some institutional rebuilding, where you’re focusing a lot on the mechanics. And finally, you hit a point where you can completely reboot, and somebody like me is no longer needed to help the organization, because you will have had a well-functioning institution that has repeated patterns, repeated actions, a built-in resistance to over-centralized control, as well as mechanisms for outside oversight and feedback. That four-stage process is a process that works very well with an organization that’s been through the type of thing that it’s been through and it’s a rubric that I’ve already put in place here. And people in the organization know this, I’m very open about this in terms of the type of thing we’re trying to do. In terms of the timeline, that again is something of which I am not in control. We have a board, and they have their agenda and their own understanding of the timeline and I have an arc of where I think would be ideal …
DEAN: That’s what I’m asking about. That arc that you see, that’s what I’m asking about. Are we talking about a year arc? A five-year arc?
TREXLER: Oh, no. I don’t even see it as a year arc. Ideally, it would go toward maybe a year, not fully a year. It would give you that kind of time, but I’m not sure I’m going to have that amount of time. So we’ll see how everything works out in terms of where the organization feels it is in relation to the community, where the organization is with respect to the team, where the organization is in terms of its sense of who it is. Maybe it’s the sort of thing that wraps up sooner. But I could not see it going longer than a year, to be honest with you.
DEAN: Has the board guaranteed you that you have at least this much time to do what you want to do?
TREXLER: Again, I don’t know what I’m allowed to disclose in terms of that, but I will say they have given me a minimum amount of time and it is not a year. [After talking with the board, Trexler confirmed, “We’re looking at the transition period lasting no longer than next year’s Comic-Con International, which is what I’ve been recommending since I first reached out.”]
DEAN: So, you apparently have decided that CBLDF is worth saving. Not everybody has been feeling that way lately. What would you say would be the consequences of it going away?
TREXLER: I think there would be a gap just in terms of what could be done. When you look at almost the organizational or institutional landscape of comics, you have companies that have been around for a while, you have a lot of start-ups that are jockeying for deals in terms of intellectual property, creative input as well as economic access and helping people build their own professions in the industry. They’re like fresh growth in the forest, something that keeps the industry going. So you have that. But when you have an organization that helps people in terms of what we would say in economics would be like a market failure or a contract failure, where you have people who were working in the industry for a period of time and they come out of it without sufficient finances; they don’t have a 401K or they don’t have a pension plan and they need money, so you have an organization that works with that like a Hero Initiative. But one thing that is a major gap is an organization that can help people in terms of giving them the tools they need to protect their rights, and I mean contract rights and copyrights, rights to the integrity of the person, I mean every right that is to be protected in terms of legal rights and human rights, when you think of the state level or the federal level and even the level of international and human rights. We started to have that kind of organization in the CBLDF, and then it just became more and more focused on a very narrow subset of issues. So what I want to do is get us back to that kind of full scope of what the organization can be doing and help meet that need. If the organization has financial resources — it definitely has human capital, it definitely has people who are able to help. There’s a great, untapped network out there in terms of lawyers who are interested in working with the CBLDF and lawyers who are willing to help people in the comics community. And I think we’re in a position to make that happen. So if the CBLDF board were to dissolve, which is what happens with lots of charities: they take the money and they send it, oh, to the government or other charities. I think the other charities would have a temporary influx of funds, but those funds would go away very quickly. Left un-helped would be all those people who would have benefited from free legal assistance and free legal insight, free legal education so they could protect their own rights more effectively and have help from knowledgeable people. It’s much about unfulfilled potential and that is a real loss, not to have that where it needs to be had.
DEAN: How open do you think the board is to your various recommendations?
TREXLER: I've had several constructive meetings with the board. Where they will ultimately lead remains to be seen.
DEAN: OK, one last question then: Do you think there are attitudes in the comics community that make it particularly fertile ground for sexual harassment?
TREXLER: That’s a really excellent question. It’s interesting, because when I first wrote about nonprofits and nonprofit design, I actually was thinking about conventions when I wrote about how a change in form is a change in law. That is to say, there are things that you might not do in one context in which you find yourself, but you’ll do it in another context. And conventions are notorious for that because you’re out of the workplace or you’re out of the family situation. You’re in a different environment and so when you’re in that sort of environment, you feel that anything goes.
And it’s particularly problematic when we come to the creative industries. Fashion is an illustration of this. Comics is another illustration. Film is an illustration. Just think of the Harvey Weinstein scandal that people have been talking about. When you’re in a creative environment, you have rules of construction in terms of creating a narrative or creating an image or creating a film or creating a story, whatever you’re doing, but then you also have the sense that the most creative artists understand the rules in order to break the rules. You’ve heard that a million times. Picasso said that, right? Breaking the rules is part of what an artist does. An artist is looking to the future. They’re looking to create. They’re not looking to be bound by tradition. If you look at early comics, it wasn’t very long before — Batman is great for this — where you’re going from boxes to having characters cut across boxes. It’s almost Orson Wellesian in their use of the frame or breaking the frame. It’s fascinating stuff that goes on in early Detective Comics very, very quickly. And so that sense of breaking the rules can apply to conventions and to artistic relationships. I think, in any artistic industry, where there’s a convention center, a convention culture, there’s this natural tendency that you see if you’re going to a place where the rules don’t apply.
And particularly if you add on to that that people are dressing differently. I’m literally talking about that they dress differently in one place from another. I’m not talking about the amount of skin. I’m talking about not wearing what they wear in their business. Just the very fact of wearing something different can send a message in a person’s brain that “I am in a different place; therefore no rules apply.” Again, it’s not about what a person wears, but the very fact that you’re in a place where everybody’s wearing something that they’re not wearing when they’re in their business and that people associate certain rules of norms and interactions with their business and their family that they don’t apply elsewhere.
The long and short of it is it is a high-risk environment. As I was giving an interview with somebody at San Diego Comic-con, there happened to be an incident that ended up being reported that I happened to see in real time, where there was a woman who was a very well known cosplay actress. I was interviewing somebody about the cosplay and the masquerades. It was a wonderful person who helped coordinate this sort of thing over the years at the San Diego Comic-con. And we were walking outside the convention center and this woman was dressed like Poison Ivy, and this guy comes up and, like, grabs her buttocks. Then people chased him down. I can almost guarantee you that if you take the same players and they’re sitting in a bank or sitting in a McDonald’s or sitting in a university or something, that kind of assault wouldn’t be as likely, because there may be norms that harassers feel they can’t violate. There’s something about a comic-con that lends itself to that kind of behavior.
It’s any convention. It could be a movie convention, an artistic convention, whatever. The fact is you’re at a different place where normally everybody has different social norms in terms of what they’re doing, in terms of what they’re wearing, in terms of how they interact, in terms of even how they see themselves, and it’s just a powderkeg, an absolute powderkeg for this kind of thing to happen, because it’s a natural environment for people to assume they’re not bound by rules. When people assume they’re not bound by rules, they do bad things.
DEAN: In that incident, you say he was chased down. Was that security chasing him down or was that other fans?
TREXLER: That was other people.
DEAN: That’s what I thought.
TREXLER: I like the metaphor of antibodies. She wasn’t actually there by herself. There were other people. This is only a few years ago, probably in the last five years. She did the classic thing, which is what you do when you want other people to respond. She called attention to it. Other people heard. When you’re the victim of a crime that’s ongoing, one of the things people say is to look somebody in the eyes or call out to somebody, not just “Help,” but to call out to an individual, because if you have that kind of localized call to action, you’re likely to get assistance that you wouldn’t get normally either generalized or if you weren’t making a personal connection. What I remember about that situation was that it had a more collective response.
DEAN: Right there, you can see two different kinds of attitudes in the comics community. One, to break the rules and the other, to intervene to uphold the law, you know?
TREXLER: Exactly right. Those two things. And part of the way you stop the bad behavior is you change the design environment. I wrote about this a couple of years ago. One of the things I was really heartened to see at San Diego and in New York — I think it started in New York — people put signs everywhere saying they were anti-harassment. Big signs everywhere. And they also had a special room where people could go. They had help or there was a clear sense of where they could report something. If you have a design environment where people may be inclined to feel they’re not bound by rules, one way you deal with that is you create markers within that design environment that remind people that there are rules that apply and that there are consequences if you violate those rules.
DEAN: Can you explain what you mean by “design environment”?
TREXLER: Thanks for asking — it's a good thing to clarify. A design environment is a stylized interface and its constituent elements, including material, processes, people, rules and effects. Comic-cons, comic books, the site on which someone's reading this right now — each is a design environment, with its own composition and impact on how we see and think.
Assessing the risks implicit in design environments is an integral part of ethics strategy. The risks of bad behavior multiply when you take people out of the office routine. Holiday parties are an ethics Purge, and conventions at hotels level up risks even more. I get the reasons for bringing people together over long distances, but the standard place for professional development and deal making should never have been an off-site structure where the most conspicuous feature of most rooms is a bed.
As we say in my neighborhood, though, it is what it is — you have to devise ethics strategies for dealing with things as they are, and any alternative is likely to have its own problems. Over time our legal system has put in place rules to offset some of the worst effects of treating people merely as things to be used, but these laws have their own structural flaws, with companies running closed internal harassment investigations an apt Exhibit A. In the comics environment, the legal rule that has had the most deleterious effect when it comes to harassment is federal civil rights law, Title VII, which only applies to employers with 15 or more employees in the context of active or prospective employment. This has given rise to a sense that independent contractors, employees of small organizations and people you aren't trying to hire are fair game.
There are legal and practical reasons for why the law was written the way it was, but from the standpoint of ethics design it's a disaster. Much of what I do in my ethics work involves reframing — as Yale psychology and cognitive-science professor Paul Bloom notes, one of the fundamental insights in the study of evil is that people have a pronounced tendency to rationalize bad behavior as good, necessary or an innocent mistake. The design environment raises the risk of self-justified deleterious outcomes, so while we can never eliminate evil, we do what we can to mitigate it. How can we change the rules or norms of interaction so there's no viable excuse for bad action, or at least an incentive not to act on one's antisocial desires?
Sometimes it can be as simple as if you have a bunch of signs in a workplace, like the law has a lot of people dealing with sexual harassment. But again design matters — there are ways that are ineffective and ways that work. For example, you go into the dining area, the break room, and there’s a whole wall of signs. People don’t pay attention to those signs. However, if you have a big sign out in an area where you’re getting your tickets or your passes or your badges, then you’re associating breaking this rule with not getting your badge. That aligns rules with consequences and things that you want in a way that starts discouraging that.
It’s the same thing with hiring. There’s this trope of women who model for painters being seen as sexually promiscuous. There’s long been this sense of hiring for art as being this place of decadence, and so the freedom of the artist’s ethos when the rules don’t apply often bleeds into, shades into by osmosis even, the managerial role, so your people in management feel like they should have the same kind of freedom, not being bound by the rules like artists.
Having seen this and tried to stop this in another industry, it’s something I’m very familiar with. You know, there’s a sort of sense that, if you want to be hired for a fashion photo shoot, if you want to be hired or wear this sort of thing, then you are sexually available. I remember some guys found out that I was doing that sort of work with models as part of my ethics work. “Heh, heh, heh. You get to see all these models.” But what they needed to know was that, yeah, I am working with models so we can do things like put up barriers in their dressing rooms so they don’t have to be seen by people like you to work out their contracts, so people don’t assume that just because they’re models, they’re sexually available to people like you.
It was about creating this environment so that people understand that this is still a professional environment and it’s one where people are not objects to be used sexually. They are human beings who are pursuing a particular career and they need to be respected as such and not have it assumed that they are there for anything else. It’s something of which I’m very proud. One of the traditions in fashion was to be able to let photographers come in pre-show, so they can take photographs of the dresses or whatever the designs are without interference by people, lights and all that sort of stuff that could get in the way of a good clear shot. But what it really became for some people — not everybody — a way to get to photograph models nude without consent. While the model is preparing for the show, the photographers are doing whatever they want to take the photos. Which is why when we did fashion shows, we created a back room where we put up barriers and we banned photographers there when women were getting dressed and we created an environment wherein they could be private and they could dress in privacy. And it became standard practice for a number of shows.
To work in design environments, with the changes that people have seen and when you remind them that there are rules and there are human beings here and we can’t do the kinds of things we may have been used to doing for years is very important to me. And I think that’s something we can do in comics as well. Luckily, there’s been a lot of work already on this front. But particularly after #MeToo, I think there’s a lot of work that needs to be done and there’s more work that we have it in our power to do.