A circuit court judge in Virginia has rejected petitions to label two books — included the much-maligned Maia Kobabe graphic novel Gender Queer — as “obscene,” a designation which would have made it illegal to sell or lend the books in the commonwealth.
Circuit Judge Pamela Baskervill rejected the petitions, ruling that the state law being used to challenge the books is unconstitutional on its face because it violates the First Amendment and the Constitution of Virginia, infringing on free speech rights as well as the right to due process for booksellers and publishers, who are not required to be informed of when a book they are selling or distributing has been designated “obscene.”
Baskervill also vacated a lower court determination of probable cause for obscenity, finding the lawsuit didn’t present facts that could support a finding that the books are obscene, even as defined under Virginia law.
As a result, she dismissed the case.
The original petition sought to challenge Gender Queer, Kobabe’s autobiographical story about coming to terms with their sexuality and gender identity, and A Court of Mist and Fury, an adult fantasy romance novel by Sarah J. K. Maas.
The petition asked to have them declared obscene under a portion of Virginia law that had not been used for decades, but purports to allow any individual to file a petition claiming that any book they find objectionable is obscene.
The petition — filed by Tim Anderson, a Republican member of the Virginia House of Delegates on behalf of Tommy Altman, a Republican who unsuccessfully sought a congressional seat in the Hampton Roads area — sought to enjoin Barnes & Noble bookstore and Virginia Beach Schools from allowing the books to be purchased or borrowed by minors without parental consent.
Speaking with Slate magazine earlier this month, Anderson insisted he was not trying to ban the books, but rather have them declared “obscene” by the court so that children could not easily access them.
Anderson told Slate that Virginia’s obscenity law would also allow the court to potentially exempt a “restricted category of persons to whom the book is not obscene” — in this case, all adults — ostensibly allowing them to purchase or borrow the books from booksellers and public libraries.
Gender Queer, a young adult novel that was the number-one most challenged and censored book of 2021, has come under attack from parental rights groups and conservative activists who have called for the book to be banned in some school systems.
Opponents primarily object to the book’s premise — an autobiographical tale of a person’s exploration of their gender identity and sexuality — as well as its embrace of gender-fluidity and nonbinary identity and seven pages that depict sexual intimacy, calling the graphic novel “pornography.”
A Court of Mist and Fury, which is the second of four books in the second of two separate adult fantasy book series written by Maas, has primarily been flagged for its scenes describing the character’s sexual liaisons.
It remains unclear why only that book, and not others from the series, were flagged, although Anderson claimed that A Court of Mist and Fury had been found in a school library in Virginia Beach.
According to Supreme Court precedent, for a work to be considered obscene, it must meet a three-prong test — “whether the average person, applying contemporary adult community standards, find that the matter, taken as a whole, appeals to prurient interests,” whether the average person finds the matter depicts or describes sexual conduct in a patently offensive way; and whether a reasonable person finds that the work, taken as a whole, lacks “literary, artistic, political, or scientific value.”
That means — unfortunately for conservative activists, who have trumpeted the more salacious parts of both novels in order to prove their inappropriateness for children — the work must be taken as a whole.
As Kobabe noted in a brief to the court in July, the portions of their novel that are being highlighted to spark outrage among concerned parents comprise seven out of 240 pages in the book, saying the court must decide “whether those seven pages are the dominant theme of the book, taken as a whole” and “whether the remaining 233 pages are mere empty filler.”
Matt Callahan, a senior staff attorney with the American Civil Liberties Union of Virginia, which, along with the national ACLU, challenged the petition on behalf of local booksellers, praised Baskervill’s decision to dismiss the petition.
“We are pleased with the outcome of today’s proceedings,” Callahan said in a statement. “The First Amendment protects literary expression, even when some people find portions of the works difficult or objectionable. All people should be able to choose what they wish to read.”
Jeff Trexler, an attorney representing Kobabe, told Hampton Roads area ABC affiliate WVEC that his legal team is pleased with the dismissal.
“This is blatantly unconstitutional, and I think it’s fundamentally against what we are about as Americans,” Trexler said. “I think to have the government come in and say, ‘You cannot show these images, you cannot talk about this subject,’ that is what would be obscene.”
Anderson expressed his displeasure with the ruling, and has 30 days during which to decide whether he and his client will appeal the ruling.
He also raised the possibility that he would introduce legislation during next year’s General Assembly session to establish a book rating system that would determine whether a novel’s contents are appropriate for children.
“We have movies, video games, music, all have warnings. You can’t sell an R-rated ticket to a child,” he said. “But books, there’s nothing — it’s the Wild West.”
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