A Virginia state judge has set an August 30 hearing to consider two lawsuits that, if successful, would cause two popular books to be pulled from bookshelves across the state, alleging they are “obscene” under an obscure state law.
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, judge Pamela Baskervill (a retired judge hearing the case by designation after all the sitting judges in the circuit disqualified themselves) found there was “probable cause” and ordered the defendants to answer the charges.
While the two lawsuits have not been officially consolidated, the court will consider the fate of both cases at the single hearing, noting their “overlap.” According to a June 30 order, the hearing will focus on motions, which, if granted, "would result in dismissal of the suits." Lawyers for the authors and publisher defendants as well as bookseller Barnes & Noble filed motions to dismiss the suits late last month. Reply briefs from the plaintiffs are due August 9, with final replies due from the defendants on August 16.
Kobabe’s Gender Queer is an acclaimed, award-winning graphic novel and coming of age story, while A Court of Mist and Fury, is a bestselling novel also with strong reviews.
Calling the complaints “procedurally and substantively deficient, as well as unconstitutional,” lawyers for Kobabe’s publisher, Oni-Lion Forge, insisted in a July 26 motion to dismiss that the court must toss the case.
“At the outset, the Petition is doomed, “ the brief states, noting that nothing in the statute cited permits the court to deem a book “obscene” for minors. “Moreover, the Petition is flawed for even what it does allege. Instead of addressing the literary work as a whole, Petitioner highlights seven pages from the 240-pages of Gender Queer that he claims ‘exert a dominant and perverse theme to promote felonious sexual encounters between minors.’ Even if those seven pages were not taken out of context, which they were, the Petition fails to plead with sufficiency that Gender Queer is obscene under [the law]. Under both the statute and well-settled constitutional legal precedent, the Petition must allege that Gender Queer, taken as a whole, has a dominant theme that appeals to the prurient interest of the average citizen of the Commonwealth. The Petition, as a matter of law, fails to do so.”
In a separate July 26 brief, lawyers for Kobabe offer an even more blunt assessment the case: “The goal of this lawsuit is to censor literature,” the brief states. “Petitioner Tommy Altman dislikes what he sees on seven pages of an award-winning 240-page book, and from that small sample and without addressing the graphic novel as a whole, he seeks an unconstitutional ruling that the entire book is obscene.”
In a joint brief, lawyers for Maas and Bloomsbury also rip the petitioner’s claims. “Petitioner cherry picks approximately a dozen passages from the more than 600 pages in the book and then asserts that these excerpts are inappropriate for 10-year-olds,” the brief states, going on to call the attempt to pull the book from bookshelves blatantly unconstitutional.
And in a powerful brief, attorneys for B&N eviscerate both the claims and the petitioner, Tommy Altman, the conservative lawmaker who had sought to portray the suit as an issue of "parental rights," taking a page from Virginia governor Glenn Youngkin's successful campaign playbook. (Altman, however, lost the Republican primary for Congress on June 21 by more than 40 points).
“The petitions are extraordinary,” the B&N brief states. “They ignore the language of the Virginia statutes under which they were filed and assume that developments in First Amendment law over the past 65 years never occurred. They are not well grounded in fact. They are not warranted by well-settled law, or a good faith argument for the extension, modification, or reversal of that law. The circumstances under which they were filed strongly suggest that their purposes were suspect. They have generated a great deal of public attention. But they are misuse of the legal process. They should terminate at the earliest possible stage. The court should draw a clear constitutional line now.”
The cases have garnered national headlines and generated concern among booksellers, publishers, librarians, and free speech advocates including an amicus brief filed last month on behalf of a coalition of four Virginia booksellers, the American Booksellers for Free Expression, the American Library Association, The Virginia Library Association, the Association of American Publishers, the Authors Guild, and the Freedom to Read Foundation.
"These cases threaten the right of booksellers, librarians, authors and publishers, including Proposed Amici, to create, curate, and provide access to First Amendment–protected material," the brief states, "and the right of their customers, patrons, and readers to obtain and consume such material."