Obscenity suit exposed an outdated law and a society too reliant on government to raise kids

September 6, 2022 12:02 am
Image of banned books

Books on a library cart. (Kennedy Library)

Last week, a court in Virginia Beach was asked to find two books depicting sexual activity obscene and ban their sale at a Barnes & Noble store to people younger than age 18.

The court declined, largely sidestepping the question of whether the content was legally obscene and instead deconstructing the anachronistic state obscenity law dating to 1950 under which the complaint was brought.

To be clear, this was litigation undertaken with an eye toward election year politics. It was filed by Del. Tim Anderson, a conservative lawyer, on behalf of fellow Republican Tommy Altman. At the time of the filing, Altman was running in the GOP 2nd Congressional District primary, attempting to run to the right of state Sen. Jennifer Kiggans, the eventual nominee.  

The complaint sought to have the court declare “Gender Queer” and “A Court of Mist and Fury” obscene and ban their sale to minors unless they had the consent of their parents. Had the court ruled in Altman’s favor, any subsequent sale of either book or even the lending of them from one person to another anywhere in the commonwealth could have subjected the seller or lender to criminal penalties, contends the ACLU.

“Gender Queer” may ring a bell. Maia Kobabe’s graphic novel memoir was published in a format similar to a comic book with illustrations depicting sexual contact, masturbation, use of a sex toy and, according to the Washington Post, an erotic scene of a man and a boy on what appears to be a Grecian urn.

The book became the most contested of 2021, based on an American Library Association survey that tracked 729 challenges to library, school and university materials and services.

In Virginia, it generated raucous debates at school board meetings, notably in Loudoun County but also in other localities, as outraged parents demanded the book’s removal from school libraries. Republican Glenn Youngkin’s successful gubernatorial campaign seized on the issue, and it gained traction, notably in Democratic-voting suburbs, as he championed the rights of students’ parents.

In a way, Anderson and Altman were piggybacking on Youngkin’s success a year ago with the litigation, claiming that their lawsuit was intended to give parents oversight of what their minor children may purchase. Parental prerogatives make for potent and resonant politics, as former Gov. Terry McAuliffe learned the hard way after a televised debate with Youngkin.

But attempting to use a wobbly, antiquated law that trial Judge Pamela Baskervill noted would allow the government to exercise unconstitutional prior restraint against speech or expression is not the way to do it. The retired jurist, presiding for Virginia Beach judges who recused themselves because of the involvement of a lawmaker in a state where legislators appoint judges, also found the law unworkable because it could make criminals of people who sell or even lend books unaware that a judge in a locality hundreds of miles away had ruled the material obscene.

In comments to journalists after Tuesday’s hearing, Anderson and Altman pondered the prospect of appealing the ruling to the Virginia Court of Appeals.

In support of the intent, the men note the existence of age-based restrictions such as those that apply to movie theater admission and assert that similar systems should apply to books. Anderson said he is considering legislation for next winter’s General Assembly session that would establish such a system in state law.

Movie ratings, however, are not imposed by law. They are voluntary, a regimen put in place in 1968 by the Motion Picture Association of America that assesses the appropriateness of films for children and teens and designates them accordingly on a scale from G, for all audiences, to NC-17, forbidden to all under 17. Nobody risks arrest, a day in court or jail time if a 16-year-old watches an NC-17 flick.

But even arguing in 2022 over archaic constructs from the final third of the previous century is a fool’s errand – a doomed finger-in-the-dike approach to holding back oceans of digital content that children are far more adept at accessing than their parents. And much of what dwells online is more harmful than any book ever placed on the shelves of a library or bookstore.

It’s also mystifying why efforts to restrain expression focus so obsessively on sexuality, especially LGBTQ issues, with far less regard for mind-warping, gratuitous violence including interactive, immersive bloodlust fantasies and how-to kits for building bombs and firearms. A creative kid with a credit card number can access a gambling portal and squander untold sums in seconds. All of those arguably carry more potential for ruin than words or illustrations that explore one’s sexual awakening.

Sure, there are safeguards intended to deter children from abusing online venues they have no business visiting, and some of them have real teeth, but any kid worth his username can easily defeat them if left to his or her own devices absent parental supervision.

Ah! There’s that word again that Anderson, Altman, Youngkin and other Republicans have leveraged politically with varying degrees of success: “parental.” And credit them: they’ve rightly underscored for the political world how essential and difficult parenting is.

Both of my sons are grown and have long since ventured out on their own. The eldest has a child, and I worry about the world in which he and my daughter-in-law must raise him. The job that they have is much tougher than it was when my sons were children, with many of today’s threats unfathomable then. But sexual content – some of it explicit, even obscene – isn’t among those threats; it was around even before my long-ago childhood.

Unfair as it may seem, those heightened risks and the hard work of neutralizing or minimizing them resides first with parents. But it’s also incumbent on society and our communities to better aid and empower them. The most effective solutions are the least expensive and intrusive, and they needn’t involve government – three virtues that should gladden any conservative’s heart.

Communities owe it to young families to police themselves for situations that compromise the safety of children and call out habitually bad actors. Neighborhoods – and neighbors – owe it to them by being connected, mindful and watchful for one another and all the children in their midst.

Those concepts work, or at least they did in a simpler, less riven America. The term “it takes a village” was around for ages before Hillary Clinton appropriated it as the title for her 1996 book. The “village” approach accomplished far more than the heavy hand of government ever can.

I don’t know if villages of that sort are possible in the collection of quarrelsome tribes that our culture has devolved into over the past decade or so. That’s a shame because it leaves only inflexible legislation, exorbitant appropriations and still more divisive litigation as a sorry substitute.

But as poor an option as legislation and litigation are, those are easier for guys like Anderson to tout on 2023 re-election campaign materials than a genuine – even quixotic – appeal to the common good and the better angels of our nature.


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Bob Lewis
Bob Lewis

Bob Lewis covered Virginia government and politics for 20 years for The Associated Press. Now retired from a public relations career at McGuireWoods, he is a columnist for the Virginia Mercury. He can be reached at [email protected]. Follow on Mastodon: @[email protected]