Books

Virginia Won’t Ban Books for Obscenity—for Now

“We have to keep working our way up the ladder,” said the Republican stage legislator who brought the case.

A man in a suit stands in front of a courthouse, speaking into microphones.
Jeff Trexler of the Comic Book Legal Defense Fund speaks to reporters after the decision in front of the courthouse in Virginia Beach. Dan Kois

VIRGINIA BEACH, Virginia—A Virginia state court judge dismissed the petitions against two books Tuesday, ending for now an attempt by local Republicans to rule the books obscene.

“I agree with the defense that the statute is facially invalid,” said retired judge Pamela S. Baskervill, who was assigned the case after all the local circuit court judges recused themselves. She was referring to the obscure Virginia state law that a Republican state legislator had used in his attempt to declare Maia Kobabe’s graphic memoir Gender Queer and Sarah Maas’ fantasy romance A Court of Mist and Fury “obscene for minors.”

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Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, though inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2nd district.) “Even if one part of the law is deficient, it doesn’t make the entire law unconstitutional,” he argued. “Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law get written a confusing way.”

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“But I have to interpret it!” Baskervill said from the bench. In her orders, she declared the law “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”

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The case—part stunt, part trial balloon—had drawn attention as a worrying salvo in the right wing’s continuing attempts to redefine obscenity to mean, as PEN’s Jonathan Friedman told me, “any mention of sexuality or other topics they find distasteful.” More than 10 lawyers appeared in court Tuesday opposing the petition—representing Maas, Kobabe, their publishers, Barnes and Noble, the ACLU, and a coalition of Virginia bookstores and literary nonprofits. In arguments, Barnes and Noble’s attorney, Bob Corn-Revere, rejected Anderson’s claims that he wasn’t trying to ban the books. “When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship,” he said.

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After Baskervill dismissed the case, I asked Eden Heilman, the legal director of the Virginia ACLU, if it didn’t seem annoying that the ruling found fault with the law, not with the operatives trying to use a bad law for bad ends. “No, we’re pleased she focused on the law,” Heilman said. “The law is the problem.” While this court decision won’t invalidate the statute—it would take the legislature, the Virginia Supreme Court, or the U.S. Supreme Court to do that—Heilman said she thought this decision would prevent other would-be litigants from attempting to use the law in the same way.

“We might appeal,” Anderson told me after the hearing. “Or I might introduce new legislation that doesn’t have the due process issues that the judge ruled this statute has.” Ideally, he said, book publishers would agree to some kind of universal ratings system, similar to the ones used in the video game and movie industries. Asked how he would get publishers to agree to such a thing, he said, “I’m sure we can get everyone to come to the table on this issue.”

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“Plenty of individual publishers and educators already make recommendations on what’s appropriate for kids,” said Jeff Trexler of the Comic Book Legal Defense Fund, who represented Kobabe. “Let’s leave it up to educators. To say as some kind of blanket rule that you can’t show any of this to anyone—that’s unconstitutional.” The censorship movement, Trexler added, wants to tell LGBTQ people, “Oh, you can have these rights—you just can’t depict them in a book.”

For his part, Anderson says he plans to continue his crusade. “We have to keep working our way up the ladder,” he said outside the courthouse. After all, he noted: “Dobbs lost all the way to the top.”

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