A pair of closely watched lawsuits in Virginia are now in the hands of a state judge after lawyers for two authors and publishers accused of violating an obscure state obscenity law asked the court to throw the cases out.
First filed in May by lawyer and Republican Virginia assembly delegate Tim Anderson on behalf of plaintiff and Republican congressional candidate Tommy Altman, the suits allege that the graphic memoir Gender Queer by Maia Kobabe and A Court of Mist and Fury by bestselling author Sarah J. Maas—are “obscene for unrestricted viewing by minors.” On May 18, a retired local judge found there was “probable cause” for the obscenity claims and ordered the authors and publishers to answer the charges, raising the possibility that the court could bar the books from public display and restrict booksellers and librarians from providing the books to minors without parental consent.
But in filings late last week, lawyers for Kobabe and eir publisher, Oni Press, and Maas and her publisher Bloomsbury, along with lawyers for Barnes & Noble, told the court the suits as filed are defective and the remedy sought unconstitutional.
“The petition and show cause order are facially defective because [the Virginia law] does not authorize a court to declare that the book is ‘obscene for unrestricted viewing by minors,’" reads a joint filing by Maas and Bloomsbury, explaining that the Virginia law “cannot constitutionally be the basis for the relief sought by petitioner as a matter of law.”
In separate filings, Kobabe and Oni Press also argue the law in question is misapplied and the complaint defective. “The statute permits the challenge of a book on the grounds that it is ‘obscene’ to the entirety of the community of the Commonwealth," reads the brief from Oni Press lawyers. "Petitioner here attempts to redefine [the Virginia law] to have book declared obscene as it relates to one subset of the Community: minors in the Hampton Roads and Virginia Beach areas.”
Furthermore, lawyers for the authors and publishers argue that the books in question do not come close to meeting the standard for obscenity as established by the Supreme Court, which requires that materials, even if they contain explicit material, be found to lack serious literary, artistic, political or scientific value. Thus, the relief requested by the plaintiffs would be "an unconstitutional restraint on free speech," lawyers argue.
Lawyers for Barnes & Noble also filed a motion to have the case tossed, noting that the bookseller was served even though they are not a party to the underlying petition. In their brief, lawyers for B&N defend the works in question, and the rights of booksellers to carry the books.
"As applied the [the Virginia law] violates booksellers' free speech and press rights under the First Amendment and their due process rights under the 14th amendment," lawyers for B&N argue, adding that the company as well as "other similarly situated booksellers" could be subjected to "restraining orders banning or limiting the circulation of constitutionally protected materials prior to any final adjudication of the merits," and possibly barred from selling books based on "an improper constitutional standard."
At press time it is unclear what the next steps in the case will be, although the court could order a hearing.
Also potentially bearing on the future of the case: the plaintiff, Congressional candidate Tommy Altman, was trounced in the Republican primary for Congress on June 21, losing by more than 41 points. Altman had sought to portray the suit as an issue of "parental rights," taking a page from Virginia governor Glenn Youngkin's successful campaign playbook.
The obscenity charges in Virginia have garnered national headlines and generated concern among publishers, librarians, and free speech advocates including the American Booksellers for Free Expression, the American Library Association, the Association of American Publishers, the Authors Guild, and PEN America,
“If persons like the petitioners obtain similar orders every time they have objections to a book, it will chill the freedom to read and stifle the voices of authors and publishers,” reads a recently issued joint statement. “Prohibiting the sale and distribution of books is an affront to our democratic values and threatens each person's and each family's individual liberties. It is contrary to our principles of democracy to allow anyone, regardless of their beliefs or political position, to determine what other Americans can read.”