The two books at the heart of the lawsuit are Maia Kobabe’s ‘Gender Queer’, a memoir about identifying as non-binary, and Sarah J. Maas’ ‘A Court of Mist and Fury’, a fantasy novel that depicts a romance of black fairy. Both have raised objections for their sexual material. The lawsuit, filed in Virginia Beach Circuit Court by Del. Tim Anderson (R-Virginia Beach) and congressional candidate Tommy Altman, sought to prevent the Virginia Beach school system and private bookseller Barnes & Noble locations from selling the books to children without first obtaining parental permission.
In her order dismissing the lawsuit, Judge Pamela Baskervill found that part of the Virginia state law dealing with obscenity was unconstitutional. The little-known and little-used section of the state code, around which the Republicans’ lawsuit was built, states that any citizen of Virginia can file a lawsuit in court to have a book declared obscene and, if a judge agrees , that anyone who subsequently distributes the book “is presumed to have knowledge that the book is obscene” and could be held criminally liable. The code is decades old.
In his ruling, Baskervill said the law violates the First Amendment by allowing government censorship and assuming that anyone distributing an obscene book must consciously decide to break the law, when in fact those people might “not know that a book can be considered obscene.” The law “imposes a presumption of scientificor the knowledge that one’s actions are wrong, Baskervill wrote. In similar reasoning, Baskervill concluded that the law violates the due process clause of the constitution “by permitting judgment without notice to the parties concerned.”
“Virginia Code § 18.2-384 is prima facie unconstitutional,” Baskervill wrote in his final order in the case. Thus, the case itself is no longer valid and deserves to be dismissed, she wrote.
Baskervill, who came out of retirement to govern because fellow Virginia Beach judges recused themselves, also found plaintiffs failed to establish that either book was obscene under Virginia law. “The petition does not allege sufficient facts to support a conclusion…that the book is obscene,” Baskervill wrote of “Gender Queer” and “A Court of Mist and Fury.”
In May, Baskervill discovered there was “probable cause” for designating the two books as obscene while the court considered arguments in the case. In his Tuesday order ending the case, Baskervill wrote that the finding was “released without the benefit of briefing or argument by the parties involved” and “was rendered on an incomplete record.”
“It’s a cliche of Thanos,” said Jeff Trexler, acting director of the Comic Book Legal Defense Fund who represented Kobabe in the case, of Baskervill’s gutting of his own previous decision.
He added that he believed justice had been served: “The fact is, [‘Gender Queer’] is not obscene, it is a work of 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 “considering his appeal options” and may look to “review by higher courts to conclusively answer this question.” He also suggested that they could request “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 decide to appeal. Because First Amendment and due process issues are involved, Trexler predicted, the case could eventually go to the Virginia Supreme Court — and onward to the Supreme Court.
For now, Baskervill’s decision, while it remains unchallenged, means that the specific section of Virginia’s obscenity law that she found 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 that means both books can be freely sold by private bookseller Barnes & Noble.
However, at least one of the two texts is no longer available in public schools in Virginia Beach City. Around the same time the lawsuit was making its way through the courts in May, the school board decided to remove all copies of “Gender Queer” from its libraries because of the book’s sexual content. On Tuesday, before the judge’s final ruling, Anderson and Altman withdrew part of their lawsuit that targeted the school system, citing the fact that the district had already barred students from “Gender Queer” access.
Kamala Lannetti, an attorney for the Virginia Beach school board, wrote in a statement that, “in today’s hearing, the school board argued that the court lacked jurisdiction over the school board” because that Virginia’s obscenity law “exempts public schools from the application of … Proceedings against an allegedly obscene book. But, Lannetti wrote, this issue became “moot” after the plaintiff withdrew — and the “school board took no position on the other arguments before the Court”.
Barnes & Noble did not respond to a request for comment on Tuesday.
“Gender Queer,” written as a graphic novel, charts author Kobabe’s journey from adolescence to adulthood and his asexual, gender-nonbinary coming out. The book contains graphic sexual scenes – for example depictions of oral sex, masturbation and a sexual fantasy involving fellatio between an apparent teenager and an older bearded man – which have drawn strong criticism from parents, including allegations that the book features pedophilia.
“A Court of Mist and Fury” is the second in Maas’ best-selling series, Court of Thorns and Roses, 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, recommended the text for ages 17 and up, noting that it is “full of sex, gore magic”.
The lawsuit comes amid an unprecedented nationwide curtailment of student reading freedom in the United States. Challenges and book bans both reached historic highs last year. In the past two years, six states have passed laws that mandate parent involvement in book reviews or make it easier for parents to remove or restrict texts in school, while five more states are considering legislation. similar. And Republican lawmakers in at least nine states are passing laws that require school library databases to block certain types of content.
Globally, the targeted books are primarily written by and about people of color and LGBTQ people, according to PEN American and the American Library Association — the latter of which recently found “Gender Queer” to be the most contested book of 2021.