Free-speech groups, book world fight back in Virginia obscenity case

Book publishers, booksellers, authors and free-speech groups are pushing back against a Virginia law that allowed obscenity claims to proceed in court against two books that have come under fire from conservatives who say they’re inappropriate for young readers.

The ACLU of Virginia, the Foundation for Individual Rights and Expression (FIRE) and numerous bookstores and book proponents are getting involved in the legal case playing out in Virginia Beach, where a retired judge made an initial ruling indicating the LGBTQ-themed memoir “Gender Queer” and the fantasy novel “A Court of Mist and Fury” could be considered obscene for minors due to explicit sex scenes. The case has drawn national attention due to the seemingly unique attempt to restrict sales of the books by private bookstores as opposed to simply removing them from public-school libraries.

Michael Bamberger, a top First Amendment lawyer based in New York, worked with the ACLU to file a motion to dismiss the case on behalf of the Authors Guild, American Booksellers for Free Expression, Association of American Publishers, American Library Association, Virginia Library Association the Freedom to Read Foundation and a handful of small, independent Virginia bookstores. The groups, according to court filings, have “a strong interest in ensuring that a broad selection of non-obscene fiction and non-fiction reading material be made available to readers, including material that challenges them.”

“I believe that children should be encouraged to read whatever interests them, whatever they find meaningful,” Bamberger, senior counsel at the Dentons law firm, said in an interview. “And setting up these sort of baskets that say no minor can read this book is not the way to go.”

Attorneys for the publishers and authors of the two books are also seeking to have the case dismissed, arguing the Virginia law is unconstitutional and the books themselves cannot be considered obscene based on sex scenes that only make up a portion of a larger literary work.

Virginia law defines “obscene” as material that has sex as its “dominant theme”  and “taken as a whole, does not have serious literary, artistic, political or scientific value.”

“Under the law, these books are not obscene,” said Darpana Sheth, FIRE’s vice president of litigation. “Obscenity is a legal term of art. And the First Amendment simply does not allow banning books simply because they may be read by minors.”

FIRE, which began as a civil liberties group focused on college campuses but recently broadened its mission into broader issues of free expression, isn’t formally intervening in the case but is planning to file a brief to inform the court, according to Sheth.

A multitude of attorneys from several different law firms are now working to defend the free flow of books and block the suit filed in late April by Del. Tim Anderson, R-Virginia Beach, on behalf of Tommy Altman, a former Republican congressional candidate from Virginia Beach who finished third in a four-way GOP primary last month.

Anderson, an attorney and Trump-style firebrand serving his first term in the House of Delegates, had sought a temporary restraining order against Barnes & Noble that would have prevented the bookstore chain from making the books accessible to minors. That request has not yet been acted upon. Retired Judge Pamela Baskervill, who’s overseeing the case after Virginia Beach judges recused themselves because the legislature appoints judges, set the next hearing in the case for Aug. 30.

In an interview Wednesday, Anderson said the fact that more than 20 lawyers are lining up against him is a sign of the seriousness of his case and not the type of response you’d see in a “slam dunk First Amendment case.” The request for age restrictions on media content, he said, is “narrow” and not as novel as headlines about “book banning” suggest.

“I think the majority of society accepts that they don’t want a 12-year-old going to an R-rated movie at AMC,” Anderson said. “They don’t want a 9-year-old buying an extremely violent video game without their parents knowing what’s going on.”

In the meantime, lawyers representing Barnes & Noble have argued allowing the case to proceed would be a dangerous step toward the type of book bans the country seemed to have left behind. 

“There was a time in American history, before the development of contemporary First Amendment doctrine, when best-selling and critically-acclaimed books faced the risk of being declared obscene,” a team of lawyers from the D.C.-based firm Davis Wright Tremaine wrote in a May 30 letter to Baskervill on behalf of Barnes & Noble. “But no mainstream books by established publishers have been found to be obscene in the past 60 years.”

The attorneys fighting the use of the obscenity law have argued it has severe procedural flaws, including authorizing courts to issue restraining orders against books without any notification or involvement from the businesses selling them. The obscene-book law creates a civil proceeding against the book itself, but the criminal penalties involved can fall on anyone who sells or distributes a book deemed obscene.

“That’s a bizarre procedure to start off with,” Bamberger said. “But then what is most troubling to retailers and publishers is that if in this hearing in Virginia Beach some book is held obscene, that applies to the entire state. And so a bookseller who’s in Arlington and knows nothing about the case and has received no notification and is not involved in the case in any way suddenly can be charged with a felony for selling the book.”

The defense has also pointed out the law doesn’t have any clear provision for deeming books obscene for children but suitable for adults. It does, however, allow judges to carve out a specific category of people “to whom the book is not obscene.”

From a legal perspective, the cases are virtually identical, but “Gender Queer,” a story about LGBTQ identity in a comic book-style format, has drawn stronger criticism from some parents due to an illustration depicting oral sex and other explicit content. Members of the Virginia Beach School Board chose to remove “Gender Queer” from school libraries after a review deemed the book “pervasively vulgar,” going against a staff recommendation to keep the book in school libraries.

Anderson said the illustrated depiction of oral sex in the book is “harmful to a child’s mind.”

“They shouldn’t have access to that material without adult supervision,” he said. “And that’s it.”

Bamberger said the obscenity law, as written, was meant to apply to material the courts felt no one should read and it cannot be used to let any Virginia resident go to court to try to restrict what all children can read.

“That’s not what the law says,” Bamberger said. “And neither of these books are obscene for adults. Clearly.”