The two books at the heart of the pack are Maia Kobabe’s “Gender Queer,” a memoir about identification as non-binary, and Sarah J. Maas’s “A Court of Mist and Fury,” a fantasy novel that depicts a dark fairy novel. Both have objected to their sexual material. The lawsuit, filed in the Virginia Beach Circuit Court by Del. Tim Anderson (R-Virginia Beach) and congressional candidate Tommy Altman, was intended to prevent the Virginia Beach school system and the locations of 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 on obscenity is unconstitutional. The little-known and little-used portion of the state code, around which the Republicans’ lawsuit was built, says that any Virginia citizen can file a lawsuit to have a book declared obscene and, if a judge agrees, that anyone who afterwards the book “is presumed to know that the book is obscene” and may be held criminally liable. The code is decades old.
In her ruling, Baskervill said the law violates the First Amendment by allowing government censorship and by assuming that anyone who distributes an obscene book must consciously decide to break the law, when in fact these people “don’t know that a book can be considered obscene.” The law “imposes a presumption of scientist,” or knowledge that one’s actions are wrong, Baskervill wrote. In a similar line of reasoning, Baskervill concluded that the law violates the constitution’s due process clause “by allowing judgment without notice to the parties involved.”
“Virginia Code § 18.2-384 is unconstitutional on the face of it,” Baskervill wrote in her final injunction 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 Thus, the case itself is no longer valid and deserves dismissal, she wrote.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 Virginia Beach judges withdrew, also found that the plaintiffs had failed to demonstrate that either book was obscene under Virginia law. “The petition contains 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 had discovered that there was a “probable reason” for labeling both books obscene, while the court nurtured arguments in the case. In her injunction ending the case Tuesday, Baskervill wrote that the finding was “issued without the benefit of briefing or argument by the parties involved” and “made on an incomplete file”.
“It’s a snapshot of Thanos,” Jeff Trexler, interim director of the Comic Book Legal Defense Fund who represented Kobabe in the case, said of Baskervill’s removal of her own earlier decision.
He added that he believes justice has been done: “The fact is, [‘Gender Queer’] is not obscene, this 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 “reviewing his appeals” and may turn to “supervisory court review to definitively answer this question.” He also suggested 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 decide to appeal. Because issues of the First Amendment and due process are involved, Trexler predicted, the case could eventually go to the Virginia Supreme Court — and then to the Supreme Court.
For now, Baskervill’s ruling, so long as it remains unchallenged, means that the specific portion of Virginia’s obscenity law that it deemed unconstitutional is no longer valid in the specific portion 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 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 going through the courts in May, the school board decided to remove all copies of “Gender Queer” from the 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 district’s already barring 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 had no jurisdiction over the School Board” because Virginia’s obscenity law “exempts public schools from the application of … Proceedings against a book that would be obscene.” But, Lannetti wrote, the issue became “incomprehensible” after the plaintiff’s withdrawal — and the “school board took no position on the other arguments before the Court.”
Barnes & Noble did not respond to a request for comment Tuesday.
Written in the form of a graphic novel, Gender Queer follows author Kobabe’s journey from adolescence to adulthood and her coming out as asexual and gender-non-binary. The book contains some graphic sexual scenes – for example, depictions of oral sex, masturbation, and a sexual fantasy involving a fellatio between an apparent teenage boy and an older, bearded man – that have received harsh criticism from parents, including accusations that the book is pedophilia in the viewer.
“A Court of Mist and Fury” is the second in Maas’s best-selling Court of Thorns and Roses series, which revisits 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’s “full of sex, gore magic.”
The lawsuit comes amid an unprecedented nationwide contraction in student 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 mandating parental involvement in book review 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 laws requiring school library databases to block certain types of content.
General, According to PEN American and the American Library Association, the targeted books are mostly written by and about people of color and LGBTQ individuals.