Two Virginia Republican lawmakers want a judge to label two books as obscene and order them off of bookstore shelves. (Photo by Drew Angerer/Getty Images)
VIRGINIA BEACH – A judge on Tuesday dismissed an attempt to use an arcane Virginia obscenity law to prevent bookstores from selling two titles to minors after finding the law unconstitutional on due process and free-speech grounds.
State Del. Tim Anderson, R-Virginia Beach, filed the suit earlier this year on behalf of former GOP congressional candidate Tommy Altman. They characterized it as part of a broader effort to strengthen parental control over what children read, while critics denounced it as old-fashioned censorship.
Retired Judge Pamela Baskervill, who had issued an earlier order finding probable cause to believe the books “Gender Queer” and “A Court of Mist and Fury” could be considered obscene, largely sided with lawyers defending the continued distribution of the books. But Tuesday’s hearing in Virginia Beach focused less on the merits of the books or First Amendment issues and more on flaws with the obscenity law itself.
Lawyers for numerous free-speech groups, publishers, authors and bookstores who fought against an obscenity ruling praised the outcome as a win for those who oppose government edicts about what books can and can’t be read.
“The Constitution is the law the state has to obey,” said Robert Corn-Revere, a First Amendment lawyer who represented Barnes & Noble in the case.
The Virginia law allows citizens to sue books themselves and have judges decide whether they’re obscene or not. If a book is deemed obscene, bookstores that continue to sell it can face criminal penalties. That setup, Baskervill concluded, creates severe confusion about who the parties in the litigation are and whether those it could impact are even aware of any restrictions the courts impose. Baskervill also ruled the law allows unconstitutional “prior restraint,” enabling the government to restrict speech or expression before it happens.
The ruling doesn’t bind other local courts in Virginia, but it’s a setback for Anderson and others who felt the obscenity law could potentially be used in similar book controversies elsewhere.
Baskervill, who heard the case because Virginia Beach judges recused themselves due to the involvement of a local General Assembly member, said she found the law “facially invalid” and suggested it will likely be up to others to make the final determination on the extent of its problems.
“It is not the court’s place to legislate,” she said.
The renewed attention on the little-known obscenity law could eventually draw a response from the General Assembly.
Eden Heilman, legal director for the ACLU of Virginia, said the ideal outcome would be for a higher court to declare the law unconstitutional or for the General Assembly to simply repeal it.
“We are very pleased with the ruling today,” said Heilman, one of several attorneys involved in the case on behalf of a consortium of bookstore, library and pro-reading groups.
The LGBTQ-themed memoir “Gender Queer” and the fantasy novel “A Court of Mist and Fury” both contain explicit sex scenes. Largely due to an illustrated depiction of oral sex, “Gender Queer” in particular has become a prime target in Virginia Beach and elsewhere for conservatives looking to rid school libraries of titles they consider inappropriate for young readers.
Speaking with reporters after Tuesday’s ruling, Anderson said he and Altman would consider appealing to a higher court, which could result in a more definitive statewide ruling on the law’s constitutionality. Anderson has argued age-based restrictions on content are broadly accepted in other mediums like movies, video games and music and could be legally applied to books.
“Ultimately, we want to get to a higher court and ask that question,” Anderson said.
He also said he’s considering introducing a bill in the 2023 General Assembly session to create a ratings system for books. In the courtroom, Anderson objected to the notion that part of the controversy over “Gender Queer” was driven by broader opposition to books dealing with LGBTQ issues.
“I don’t object to the theme of this book,” he said, insisting there are numerous books touching on gender identity that don’t include sexual content.
Virginia law defines obscene books as works that have sex as a dominant theme and, when considered as a whole, do not have “serious literary, artistic, political or scientific value.”
Lawyers defending the books and the bookstores that sell them argued that definition clearly doesn’t apply to the challenged works and that Anderson was going beyond what the law envisions by trying to create restrictions that only apply to minors. Baskerville agreed, ruling the law doesn’t empower her to rule a book obscene only for minors.
The law is so strangely written, Corn-Revere said during the hearing, that an obscenity finding in Virginia Beach could potentially apply to hundreds of bookstores across the state or any individual who has a copy of the book and loans it to someone else.
“That is the essence of censorship under the First Amendment,” he said.
This is a breaking news story that has been updated.
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