Virginia judge dismisses lawsuit challenging sale of two “obscene” books

The two books that form the heart of the suit are Maia Kobabe’s Gender Queer, a treatise on identifying as non-binary, and Sarah J. Maa’s A Court of Mist and Fury, a fantasy novel, the one represents dark fairy romance. Both have drawn objections to her sexual material. The lawsuit brought by Del. Tim Anderson (R-Virginia Beach) and congressional candidate Tommy Altman in Virginia Beach Circuit Court aimed to prevent the Virginia Beach school system and locations of the private bookseller Barnes & Noble from selling the books to children without first obtain parental consent.

In her order to dismiss the lawsuit, Judge Pamela Baskervill concluded that a portion of Virginia state statute dealing with profanity is unconstitutional. The little-known and little-used section of state law that the Republicans’ lawsuit centered on says that any Virginia citizen may petition a court to have a book declared obscene, and anyone who subsequently distributes it if a Judge agrees the book “is presumed to have known the book was obscene” and could face criminal liability. The code is decades old.

In her ruling, Baskervill said the law violated the First Amendment by allowing state censorship and assumed that anyone distributing an obscene book must make a conscious choice to break the law, when in fact those people “have no knowledge might have that a book might be considered obscene.” The law “makes a presumption scientist‘ or the knowledge that one’s actions are wrong, Baskervill wrote. In a similar line of reasoning, Baskervill concluded that the law violated the due process clause of the Constitution “by authorizing a judgment without notice to the parties concerned.”

“Virginia Code §18.2-384 is prima facie unconstitutional,” Baskervill wrote in her final order in that case. Therefore, the case itself is no longer valid and deserves dismissal, she wrote.

Baskervill, who came out of retirement to rule because the other Virginia Beach judges retired, also found that the plaintiffs had failed to prove that any of the books were obscene under Virginia law. “The petition alleges no facts sufficient to support a finding … that the book is obscene,” Baskervill wrote of both Gender Queer and A Court of Mist and Fury.

In May, Baskervill found there was “probable reason” for calling both books obscene while the court argued in the case. In her Tuesday order ending the case, Baskervill wrote that the finding was “issued without the benefit of any notice or argument by the parties concerned” and “made on the basis of an incomplete file.”

“It’s a Thanos snapshot,” Jeff Trexler, interim director of the Comic Book Legal Defense Fund, who represented Kobabe in the case, said of Baskervill’s gutting of her own earlier decision.

He added that he believed justice had been done: “The fact is, [‘Gender Queer’] is not obscene, this is a work of serious, substantial, artistic, literary and political importance… This case should never have been brought, and a case like this should never be brought again.”

Anderson wrote in a statement Tuesday that his client Altman is “reassessing his appeal options” and may seek “a higher court review to finally answer this question.” He also suggested that they could seek “additions to the Code by the General Assembly.” Kobabe and Maas did not immediately respond to requests for comment on Tuesday.

What happens next depends on whether Altman and Anderson file an appeal. Because of First Amendment and due process issues, Trexler predicted the case could eventually make it to the Virginia Supreme Court — and the Supreme Court beyond.

For now, Baskervill’s ruling, as long as it stands unchallenged, means that the specific section of Virginia’s obscenity law that she believed was unconstitutional no longer applies in the specific part of the state under the jurisdiction of the Virginia Beach City Circuit Court, Trexler said. And it means the two books can be freely sold by the private bookseller Barnes & Noble.

However, at least one of the two texts is no longer available in Virginia Beach City Public Schools. Around the same time the lawsuit was worming its way through the courts in May, school boards decided to remove all copies of Gender Queer from their libraries because of the book’s sexual content. On Tuesday before the judge’s final decision, Anderson and Altman withdrew part of their lawsuit targeting the school system, citing the fact that the district had already barred students from accessing “gender queer.”

Kamala Lannetti, attorney for the Virginia Beach school board, wrote in a statement that “at today’s hearing, the school board argued that the court did not have jurisdiction over the school board” because Virginia’s obscenity law “excludes public schools from applying the .. But, Lannetti wrote, that issue became “contentious” after the plaintiff’s withdrawal – and the “School Board did not comment on the other arguments before the court.”

Barnes & Noble did not respond to a request for comment on Tuesday.

Written in graphic novel form, Gender Queer follows author Kobabe’s journey from adolescence to adulthood and her coming out as asexual and gender neutral. The book contains some graphic sexual scenes – for example depictions of oral sex, masturbation and a sexual fantasy implying fellatio between what appears to be a teenage boy and an older, bearded man – which have been harshly criticized by parents, including claims the book shows Pedophilia.

“A Court of Mist and Fury” is the second part of Maas’ best-selling series Court of Thorns and Roses, which reinterprets well-known sagas and fairy tales such as “Beauty and the Beast” from new and different perspectives. Common Sense Media, the book review site, recommended the text for ages 17 and up, noting that it was “full of sex, bloody magic”.

The lawsuit comes amid unprecedented nationwide restrictions on student reading in the United States. Book challenges and bans hit historic highs last school year. In the past two years, six states have passed laws requiring parent participation in book reviews or making it easier for parents to remove or restrict texts in school, while another five states are considering similar legislation. And Republican lawmakers in at least nine states are pushing for legislation that would require school library databases to block certain types of content.

In total, According to PEN American and the American Library Association, the books that matter are mostly written by and about people of color and LGBTQ people — the latter recently found Gender Queer was the most challenged book of 2021.