Virginia judge refuses to call queer novel ‘obscene’
A Virginia court judge has denied labeling requests for two books, including Maia Kobabe’s much-maligned graphic novel Gender Queer – as “obscene”, a designation that would have made it illegal to sell or lend the books in the Commonwealth.
Circuit Judge Pamela Baskervill dismissed the petitions, ruling that the state law used to challenge the books is unconstitutional on its face because it violates the First Amendment and the Constitution of Virginia, infringing on liberty rights. expression as well as the right to due process for booksellers and publishers, who are not required to be informed when a book they sell or distribute has been designated as “obscene”.
Baskervill also overturned a lower court ruling on probable cause for obscenity, finding the lawsuit failed to present facts that could support a finding that the books are obscene, even as defined by Virginia law. Accordingly, she dismissed the case.
The original petition was to challenge Gender QueerKobabe’s autobiographical story about coming to terms with his sexuality and gender identity, and A courtyard of mist and Furyfantasy romance novel for adults, by Sarah JK Maas, by having them declared obscene under a portion of Virginia law that had not been used in decades but claims to allow anyone to file a petition claiming that any book she finds objectionable is obscene.
The petition, filed by Tim Anderson, a lawyer and Republican member of the Virginia House of Delegates, on behalf of Tommy Altman, a Republican who unsuccessfully sought the GOP nomination for a congressional seat in the Hampton Roads area, has sought to prohibit Barnes & Noble Bookstore and Virginia Beach Schools from allowing books to be purchased or borrowed by minors without parental consent.
Talk with Slate magazine earlier this month, Anderson insisted he was not trying to ban the books, but rather have them declared “obscene” by the court so children could not easily access them. anderson said Slate that Virginia’s obscenity law would also allow the court to potentially exempt a “narrow class of people to whom the book is not obscene” – in this case, all adults – ostensibly allowing them to purchase or Borrow books from booksellers and public libraries.
Gender Queer, a novel for young adults that was the most contested and censored number one book of 2021, has come under attack from parenting rights groups and conservative activists who have called for the book to be banned in some school systems. Opponents primarily object to the book’s premise – an autobiographical account of one person’s exploration of their gender identity and sexuality – as well as its embrace of gender fluidity and non-binary identity. and to seven pages that depict sexual intimacy, calling the graphic novel “pornography”.
A court of mist and fury, which is the second of four books in the second of two separate adult fantasy book series written by Maas, has been noted primarily for its scenes depicting the character’s sexual liaisons. It remains unclear why only this book, and not others in the series, were reported, although Anderson claimed that A court of mist and fury had been found in a school library in Virginia Beach.
According to Supreme Court case law, for a work to be considered obscene, it must pass a three-pronged test: “If the average person, applying the standards of the contemporary adult community, finds that the matter, taken as a whole, appeals to lustful interests, “if the average person finds the subject portrays or depicts sexual behavior in a patently offensive manner”; and if a reasonable person believes that the work, taken as a wholelack of “literary, artistic, political or scientific value”.
This means – unfortunately for conservative activists, who trumpeted the more salacious parts of both novels in order to prove their unsuitability for children – the work must be considered as a whole. As Kobabe noted in a court brief in July, the parts of their novel that are highlighted to spark outrage among concerned parents include seven of the book’s 240 pages, saying the court must decide “whether those seven pages are the dominant theme of the book, taken as a whole” and “if the remaining 233 pages are just empty fillers”.
Matt Callahan, a senior attorney for the American Civil Liberties Union of Virginia, which along with the national ACLU challenged the petition on behalf of local booksellers, welcomed Baskervill’s decision to reject the petition.
“We are satisfied with the outcome of today’s proceedings,” Callahan said in a statement. “The First Amendment protects literary expression, even when some people find parts of the works difficult or objectionable. Everyone should be able to choose what they want to read.
Jeff Trexler, an attorney representing Kobabe, told ABC’s Hampton Roads-area affiliate WVEC that his legal team was happy with the dismissal.
“It’s blatantly unconstitutional and I think it’s fundamentally against who we are as Americans,” Trexler said. “I think having the government come in and say, ‘You can’t show these pictures, you can’t talk about this subject’, that’s what would be obscene.”
Anderson expressed his dissatisfaction with the decision and has 30 days to decide whether he and his client will appeal the decision. He also raised the possibility that he would introduce legislation at next year’s General Assembly session to establish a book rating system that would determine whether a novel’s content is appropriate for children.
“We have movies, video games, music, all of them have warnings. You cannot sell an R-rated ticket to a child,” he said. “But the books, there’s nothing – it’s the Wild West.”