Virginia judge dismisses lawsuit challenging sale of two ‘obscene’ books

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A Virginia judge on Tuesday dismissed a lawsuit brought by two Republicans that sought to limit how bookstores and public school libraries could distribute two books to minors, closing — at least temporarily — an unusual commercial strategy in the campaign to protect students from literature conservatives say is not age-appropriate.

The two books at the heart of the suit are Maia Kobabe’s “Gender Queer,” a memoir about identifying as nonbinary, and Sarah J. Maas’s “A Court of Mist and Fury,” a fantasy novel that depicts a dark fairy romance. Both have drawn objections for their sexual material. The suit, filed in Virginia Beach Circuit Court by Del. Tim Anderson (R-Virginia Beach) and congressional candidate Tommy Altman, aimed to prevent the Virginia Beach school system and locations of the private bookseller Barnes & Noble from selling the books to children without first obtaining parental consent.

In her order dismissing the lawsuit, Judge Pamela Baskervill concluded that part of Virginia’s state law dealing with obscenity is unconstitutional. The little-known and little-used section of the state code, around which the Republicans’ lawsuit was built, says that any Virginia citizen can file in court to have a book ruled obscene and, if a judge acquiesces, that anyone who thereafter distributes the book “is presumed to have knowledge that the book is obscene” and could be found criminally liable. The code is decades old.

In her ruling, Baskervill said the law violates the First Amendment by enabling governmental censorship and by assuming that anyone distributing an obscene book must be consciously deciding to break the law, when in fact these people might “have no knowledge that a book may be considered obscene.” The law “imposes a presumption of scienter,” or knowledge that one’s actions are wrong, Baskervill wrote. In a similar line of reasoning, Baskervill concluded that the law violates the due process clause of the constitution “by authorizing judgment without notice to affected parties.”

Virginia Code § 18.2-384 is unconstitutional on its face,” Baskervill wrote in her final order in the case. Thus, the case itself is no longer valid and deserves dismissal, she wrote.

Baskervill, who came out of retirement to rule because the other judges in Virginia Beach recused themselves, also found that the plaintiffs had failed to establish that either book was obscene under Virginia law. “The Petition does not allege 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 had found there was “probable cause” to designate both books as obscene while the court entertained arguments in the case. In her order Tuesday ending the case, Baskervill wrote that finding was “issued without the benefit of briefing or argument by affected parties” and “was made on an incomplete record.”

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

He added that he believes justice has been done: “The fact is, [‘Gender Queer’] is not obscene, this is a work with serious, substantial, artistic, literary and political significance … 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 “reviewing his appeal options” and may turn to “review by higher courts to conclusively answer this question.” He also suggested they might seek “additions to the code by the General Assembly.” Kobabe and Maas did not immediately respond to requests for comment Tuesday.

What happens next depends whether Altman and Anderson decide to appeal. Because issues of the First Amendment and due process are involved, Trexler predicted, the case could eventually rise to the Virginia Supreme Court — and beyond that to the Supreme Court.

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

At least one of the two texts is no longer available in Virginia Beach City Public Schools, however. Around the same time the lawsuit was winding its way through the courts in May, the school board decided to remove all copies of “Gender Queer” from its libraries due to the book’s sexual content. On Tuesday before the judge’s final ruling, Anderson and Altman withdrew part of their suit that had targeted the school system, citing the fact that the district had already nixed students’ access to “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 obscenity law “exempts public schools from the application of … Proceedings against book alleged to be obscene.” But, Lannetti wrote, this issue became “moot” after the plaintiff’s withdrawal — and the “School Board did not take a position on the other arguments before the Court.”

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

“Gender Queer,” written in the form of a graphic novel, tracks author Kobabe’s journey from adolescence to adulthood and her coming out as asexual and gender nonbinary. The book contains some graphic sexual scenes — for example depictions of oral sex, masturbation and a sexual fantasy implying fellatio between an apparent teenage youth and an older, bearded man — that have drawn harsh criticism from parents, including allegations the book is showcasing pedophilia.

“A Court of Mist and Fury” is the second in Maas’s best-selling Court of Thorns and Roses series, which reimagines well-known sagas and fairy tales, such as “Beauty and the Beast,” from new and different perspectives. Common Sense Media, the book review site, has recommended the text for ages 17 and up, noting it is “filled with sex, gore magic.”

The lawsuit comes amid an unprecedented nationwide shrinking of students’ reading freedom in the United States. Book challenges and bans both reached historic highs last school year. In the past two years, six states have passed laws that mandate parental involvement in reviewing books or make it easier for parents to remove or restrict texts at school, while another five states are considering similar legislation. And Republican legislators in at least nine states are pushing laws that require school library databases to block certain kinds of content.

Overall, the books targeted are mostly written by and about people of color and LGBTQ individuals, according to PEN American and the American Library Association — the latter of which recently found that “Gender Queer” was the most challenged book of 2021.

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