In a resounding victory for the freedom to read, a Virginia state judge on August 30 swiftly dismissed two closely watched cases that sought to bar the public display and sale of two books alleged to be obscene under an obscure state law. Furthermore, in dismissing the cases the court struck down the Virginia law upon which the cases were brought, finding it unconstitutional. The orders were delivered immediately following an August 30 hearing.
First filed in May by lawyer and Republican Virginia assembly delegate Tim Anderson on behalf of plaintiff and former Republican congressional candidate Tommy Altman, the suits alleged that the graphic memoir Gender Queer by Maia Kobabe and A Court of Mist and Fury by bestselling author Sarah J. Maas—were “obscene for unrestricted viewing by minors.” On May 18, judge Pamela Baskervill (a retired judge hearing the case by designation after all the sitting judges in the circuit disqualified themselves) found there was “probable cause” and ordered the defendants to answer the charges.
Kobabe’s Gender Queer is an acclaimed, award-winning graphic novel and coming of age story, while A Court of Mist and Fury is a popular bestselling novel with strong reviews.
In separate motions filed last month, lawyers for the authors and publishers as well as for Barnes & Noble argued that the complaints were “procedurally and substantively deficient, as well as unconstitutional,” noting that nothing in the statute permitted the court to deem a book “obscene” for minors or to impose a prior restraint on protected speech.
In addition, the cases garnered national headlines and drew strong support from freedom to read advocates, including amicus briefs from groups including Virginia booksellers, the American Booksellers for Free Expression, the American Library Association, The Virginia Library Association, the Association of American Publishers, the Authors Guild, and the Freedom to Read Foundation.
In her decisive final order, Baskervill dismissed the cases, rejected the plaintiffs' bids for temporary restraining orders, and vacated the court's earlier order to show cause, specifically noting that the order was issued without briefing and on the basis of "an incomplete record." The court also denied the plaintiffs an opportunity to amend and re-file the their complaints, noting that based on the record "amendment would be futile."
Specifically, the court found for the defendants on virtually every argument offered. The court agreed that the Virginia statute in question does not allow a court to find a work "obscene for minors" and thus the court lacked subject matter jurisdiction. In addition, the plaintiffs failed to prove the works in question are in fact obscene. And in an unexpected (but one welcomed by freedom to read advocates) portion of the ruling, the court struck down the Virginia statute upon which the case is based.
"The Constitutions of the United States and the Commonwealth of Virginia operate as a constraint the pleading of a claim of obscenity as to adults and as to material that is inappropriate for distribution to minors, and the petition fails to meet the requirements of the governing constitutional rules," the final orders read. Thus, the law in question (Virginia Code section 18.2-384) is "unconstitutional on its face" because it "authorizes a prior restraint" that violates the First Amendment and Constitution of Virginia."
The decision forcefully ends what had become a worrisome development for freedom to read advocates amid a surging number of politically-motivated educational gag orders and book bans across the country. Indeed, the plaintiff in this case, Tommy Altman, a Republican candidate for Congress, had sought to portray the suit as an issue of "parental rights," taking a page from Virginia governor Glenn Youngkin's successful campaign playbook. Altman lost the Republican primary for Congress on June 21 by more than 40 points.
“We knew that the First Amendment, as well as the obscenity laws, were on our side from the beginning, but too often politics and grandstanding seem to win out over legal arguments," said Mary Rasenberger, CEO of the Authors Guild. "We view this as a victory not just for writers Maia Kobabe and Sarah Maas but for all authors who face censorship. The Authors Guild sends congratulations to all the parties and our fellow amici!”
In a statement, AAP president and CEO Maria Pallante called the judge's orders "a significant and unequivocal victory" for the free speech rights of readers, authors, publishers, booksellers, and libraries. "In today’s order, Judge Baskervill agreed with every single one of the challengers’ arguments, vacating the earlier order to show cause and dismissing the case for lack of jurisdiction, holding that the books are not obscene, and finding the law unconstitutional as a prior restraint and for violating due process protections.”
John Chrastka, executive director of EveryLibrary, also stressed the importance of the decisions. "The plaintiffs had attempted to weaponize the use of obscenity laws against books that include sexual content that does not fit their worldview. The court made the right decision in finding that these books do not meet the definition of obscenity under the law," Chrastka told PW, noting the these books, among many others have been challenged and banned in libraries nationwide. "If this court had found them to be obscene it would have been a very short walk to seeing librarians accused under obscenity laws as well."
This is breaking news. We will update this story with more reactions as they come in.
