A Virginia Beach judge threw out a lawsuit that would have prevented book sellers and libraries from selling or lending minors two books without parental consent.
The suit was filed by former congressional candidate Tommy Altman of Virginia Beach. He’s represented by current Del. Tim Anderson (R-Virginia Beach).
They argued the illustrated memoir “Gender Queer” and the fantasy novel “A Court of Mist and Fury” are obscene based on their sexual content.
“Gender Queer” and other books with LGBTQ+ themes have been targets of a rise in efforts to ban books across the nation.
Altman’s lawsuit wanted to prevent bookshops and libraries from selling or lending the two books to minors unless they get parental permission. The suit pointed to sexually explicit scenes in both books, arguing the content was obscene for children to read.
Lawyers representing Barnes and Noble and the authors of the books were flanked by even more lawyers from the American Civil Liberties Union and book industry groups in court.
Independent bookstores from Hampton Roads filed legal briefs, saying a ruling under obscenity laws could have a major impact on their business and their First Amendment rights.
The court didn’t even end up hearing those arguments.
Retired Virginia Beach Judge Pamela Baskervill agreed with arguments from the defense that the court lacked the power to rule on the obscenity standard. She said the state’s obscenity law was unconstitutional on due process grounds.
Current sitting judges recused themselves from the lawsuit because of Anderson’s status as a state delegate.
Baskervill dismissed the case.
Anderson told reporters afterward that he and his client planned to “start to work our way up the appellate ladder” and seek an opinion from a higher court.
Baskervill said the restriction requested by Altman and Anderson would effectively mean any person who hands a copy of the book to a minor in the state would be guilty of a crime if the court found the books to be obscene.
With an impact that broad, she said it seems impossible to ensure everyone who could be subject to the rule could respond to the lawsuit.
“It was very clear to me there were due process problems” with Virginia’s obscenity law, Baskervill told the court when announcing her ruling.
Anderson, a state delegate, said after the hearing that he wants Virginia to implement a government-led book ratings system.
Anderson likened the idea to movie or video game ratings that flag varying levels of content, including language and violence. Those ratings are industry creations that are ultimately optional.
Anderson said his real objective would be to ensure that books with sexual content were flagged so parents could tell at a glance what their kids are reading.
Jeff Trexler is the interim director of the Comic Book Legal Defense Fund and represented “Gender Queer” author Maia Kobabe in Virginia Beach court.
He said the comics industry at one point had a similar kind of code - the Comics Authority Code - but it was unevenly applied and ultimately leaned into censorship.
“If you want to make the kind of ratings system that doesn’t suppress speech … you don’t want a government anywhere near that,” Trexler said.
Trexler called the lawsuits from Anderson and Altman “blatantly unconstitutional” attempts at censorship.
