The Obscenity Pivot

At the end of August, in a courtroom in Virginia Beach, a judge will decide whether to put two books on trial for obscenity.

This is a strange sentence to write, and I expect a strange sentence to read, because these days books don’t go on trial for obscenity. Books haven’t really gone on trial for obscenity since landmark 20^th-century cases determined that first James Joyce’s Ulysses, and then Henry Miller’s Tropic of Cancer, could not be banned by the government. Like most Americans, you might believe books have a settled status in our culture—that even if they contain sexual material, they’re protected by the First Amendment.

Tim Anderson disagrees. He’s the man trying to get the books declared obscene—and, in the process, change obscenity law in the United States. Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, will argue the case later this month. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2^nd district.) The petition is a new twist on recent right-wing attacks on materials that address sexuality, gender, and race. Rather than demanding that school boards or librarians remove books, the current case takes the books to court, using an obscure Virginia law that would allow the judge, if she found the books obscene, to ban bookstores, libraries, and even private citizens from selling or sharing them, everywhere in Virginia.

“It’s very, very rare for a judge to further an obscenity proceeding against a book,” said Kevin Birmingham, author of The Most Dangerous Book, a history of the 20^th century obscenity challenges to Ulysses. And yet, when retired Virginia circuit court judge Pamela S. Baskervill—who was assigned the case when all the local circuit court judges recused themselves—first looked at Anderson’s petitions, she found probable cause that the books may be obscene and allowed the proceeding to continue. When the court informed the publishers of the two books—as well as Barnes and Noble (also named in the petition)—that the books were being challenged, lawyers hurriedly drafted briefs running down the basics of First Amendment law as it pertains to obscenity and the written word. On Aug. 30, both sides will argue their cases, and Baskervill will get the chance to decide whether the books in question—Gender Queer and A Court of Mist and Fury—should be banned in the state of Virginia, and for whom.

The two books make for strange bedfellows. Gender Queer, by Maia Kobabe, is a graphic memoir about the author’s nonbinary gender identity that has recently become one of the most-challenged books in American libraries and schools. A Court of Mist and Fury is a mainstream (straight) fantasy/romance about a human transformed into a faerie, the second in a hugely successful YA series by Sarah J. Maas. The books vary widely in tone and artfulness: one is an earnest, carefully crafted memoir focused on gender identity, the other an enjoyably trashy high fantasy with the occasional hot sex scene. (Kobabe declined to comment; multiple emails seeking comment sent to Maas’ publisher, Bloomsbury, received no reply.)

The two books do share one thing, which is that Tim Anderson and Tommy Altman—the plaintiffs, basically, in this odd proceeding—think kids should not read them. “Well, Gender Queer is the number one rated contested book in the nation,” Anderson told me when I asked him why he’s challenging these two particular titles. “It’s definitely one of the more egregious books when it comes to illustrations.” As for the Sarah Maas novel, “it’s not as extreme as other books,” but he found it in a middle school library in Virginia Beach. “So this was being recommended by school librarians to children that were as young as sixth grade.”

The petitions Anderson filed in April list various racy moments in the two books. As examples:

Page 538: He was enormous in my hand—so hard, yet so silken that I just ran a finger down him in wonder.

Page 135—Illustrates minors providing stimulation of genitals with hands.

“The sexual content,” Anderson’s petitions declare, “promote felonious sexual encounters when exposed to minors.” The books, he asserts, “go substantially beyond customary limits of candor,” “and accordingly have no serious literary, artistic, political, or scientific value to minors.”

The Virginia statute Anderson employs dates from the 1950s and has rarely been used. “A lot of lawyers didn’t even know it existed,” said Matt Callahan of the ACLU of Virginia, which is representing a collection of Virginia bookstores and nonprofits in opposing the petition. The statute allows any Virginia citizen to challenge a book as obscene in circuit court. If the court agrees, it may file a restraining order against the distribution or sale of the book anywhere in the state. The language of the statute is “clearly unconstitutional” and alarmingly broad, according to Callahan: “It doesn’t apply only to distribution by major bookstores. It seems to apply to, say, one person handing the book to someone they live with.”

The petition is the latest gambit in a wave of book-banning attempts that have driven local Republican politics over the past few years. “There is a movement spreading around the country that seeks to make this a political wedge issue, trying to cast books with any sexual content whatsoever as legally obscene,” said Jonathan Friedman, the director of free expression and education at PEN America. Many, though not all, of the books targeted are about LGBTQ issues, which many Republicans deem “sexually explicit” whether or not there’s actual sex involved. Said Friedman, “It’s a small group of people trying to decide what everyone should have access to.”

The legal arguments of the books’ defenders say as much. “The Petitions exemplify efforts to ban books that have featured prominently in recent Virginia political campaigns,” write Barnes & Noble’s attorneys in a brief filed to the court. “While most of these controversies have focused on the availability of books in public schools, here, the Petitioner seeks to move beyond just the schools and deploy an antiquated statute to limit access to books generally in bookstores and elsewhere.”

Anderson dismissed that assertion. “We’re not trying to ban these books,” he said. “We’re not trying to burn these books.” He said his goal is simply to exclude minors from having access to the two books without parental consent.

In making his case, Anderson pointed to a line in the law that notes that, should a judge find a book obscene, it may exercise discretion to “except from its judgment a restricted category of persons to whom the book is not obscene.” He’s asking the court to declare the books obscene—but then delineate a specific category of people, namely all adults, for whom the books are not obscene. It’s an unusual argument, one that depends on a judge agreeing with Anderson that the books’ sex scenes are beyond the pale, yet also taking the initiative to declare that nevertheless the books should not be considered obscene for 78 percent of the state’s residents (adults).

According to decades of Supreme Court precedent—and Virginia law—a book cannot be found obscene based only on a selection of its most salacious bits. Books must be considered “as a whole” and, if they have serious literary, artistic, political, or social value, cannot be ruled obscene. Anderson seeks to redefine that standard: “I think that when you’re talking about an adult looking at the material, maybe you can use that standard. But I certainly think we have to have a different standard for children, because if you taint a book with extreme sexual copy, whether it’s text or pictures, minors can’t process that like an adult.”

Anderson offered a hypothetical. “Let’s say Moby Dick. Great work of art. But what if they just decided, right in the middle of the story, to put a graphic picture of two men performing fellatio on each other? Or even better, two children just performing fellatio on each other? Wouldn’t we say that, ‘Whoa, like, that is unnecessary in that book and we don’t want children to see that?’ It’s not appropriate for children to see other children performing fellatio on each other.” (In Gender Queer, one scene involves a 25-year-old Kobabe and a partner experimenting with a strap-on. It does not seem especially out of place in a memoir of youthful discovery.)*

Once upon a time, courts did determine a book’s obscenity based on the question of whether children should read its most shocking lines. In 1921, the state of New York ruled that Ulysses was obscene, because, Birmingham said, “the implicit question that the judges had in mind was, Do I want my daughter reading this?” But in 1933, a federal judge found that Ulysses had to be considered according to the book’s overall effect on an average adult. Otherwise, as Birmingham noted, “We’re effectively holding the nation’s reading to the standards of a children’s library.”

A hearing on Aug. 30 in Virginia Beach will determine whether the case can go forward. In his brief responding to the books’ defenders, Anderson goes all-in on describing the books’ sexual content. (A search for “fellatio” yields eight results.) There’s also a lot of talk of undeveloped prefrontal cortexes, the harm such explicit images could do to “highly susceptible” children, and a full-page aside about the “Marxist ideology” of the American Library Association.

“If you, an adult, read something, or my 12-year-old reads that same thing, can it be obscene to the 12-year-old and not to you?” Anderson asked me. It was clear he thought so. “I think we’re going to be able to carve that exception out in this case, either here at this trial level, or as we work our way up the chain.”

Is he right? Well, if Baskervill follows nearly a century of precedent, she’ll throw the case out. But because the issue is so long-settled, obscenity cases rarely make it to court at all, and as a result, judges often aren’t that familiar with the law. “I’m sure in her entire career she’s never seen a case like this,” Birmingham said. And these days it’s hard to predict what a state court judge will do, or an appeals court, or—should it get that far—the Supreme Court. “We see how easily conservative judges are willing to go back on precedent,” Birmingham said, “especially when they feel there’s a groundswell of public support buttressing their sentiments.”

“This is a movement that isn’t looking to stop at Gender Queer,” said PEN’s Jonathan Friedman. “This is a movement that seeks to ban broad swaths of material, for everyone, based on any mention of sexuality or other topics they find distasteful.” It’s useful to think of Anderson’s petition as a hopeful salvo, testing out the defenses. It attempts to make the most of an archaic state law that’s unlikely to survive constitutional scrutiny. “I don’t think this particular case is going to change federal law,” Birmingham said. But neither he, nor anybody else I spoke to, thought it would be the last try. And eventually, one of those hopeful salvos might break through.

Even if this case doesn’t succeed, Birmingham thinks it’s entirely possible that long-settled obscenity rulings could be rolled back “the way Roe v. Wade was rolled back.” The result could be a wave of book bannings across the country, long after most readers thought that reading the literature of your choice was a fundamental American right. “It depends on how you interpret the word obscenity,” Birmingham said. “It’s as illegal today as it was in 1917. All that’s changed since then is the definition.” For decades, he pointed out, liberals and free speech champions have cheered the way that definition has changed. But in the future, there’s no reason that hardline conservatives couldn’t celebrate a new definition, too.