Book publishers, booksellers, authors and free speech groups are pushing back on a Virginia law that allowed obscenity claims to proceed in court against two books that have come under fire from conservatives who say they are inappropriate for young readers.
The ACLU of Virginia, the Foundation for Individual Rights and Expression (FIRE), and numerous bookstores and book promoters are getting involved in the court case unfolding in Virginia Beach, where a retired judge ruled an early ruling stating the LGBTQ-themed memoir “Gender Queer” and the fantasy novel “A Court of Mist and Fury” could be considered obscene to minors due to explicit sex scenes. The case gained national attention due to the seemingly unique attempt to restrict book sales by private bookstores instead of simply removing them from public school libraries.
Michael Bamberger, a top New York-based First Amendment lawyer, worked with the ACLU to file a motion to dismiss the case on behalf of the Authors Guild, American Booksellers for Free Speech , Association of American Publishers, American Library Association, Virginia Library Association. the Freedom to Read Foundation and a handful of small independent bookstores in Virginia. According to court filings, the groups have “a strong interest in ensuring that a wide selection of non-obscene fiction and non-fiction reading material is made available to readers, including material that challenge them”.
“I believe children should be encouraged to read anything that interests them, anything that they find meaningful,” Bamberger, senior attorney at the law firm Dentons, said in an interview. “And putting up these kind of baskets that say no minor can read this book is not the way to go.”
Lawyers for the publishers and authors of the two books are also seeking to have the case dismissed, arguing that Virginia law is unconstitutional and that the books themselves cannot be considered obscene based on sex scenes that do not constitute only part of a larger literary work.
Virginia law defines “obscene” as material that has sex as its “dominant theme” and “taken as a whole, has no 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 in art. And the First Amendment simply doesn’t allow books to be banned just because they can be read by minors.
FIRE, which started as a civil liberties group focused on college campuses but recently expanded its remit to broader free speech issues, is not formally intervening in the case but plans to file a brief for inform the court, according to Sheth.
A multitude of lawyers from several different law firms are now working to defend the free flow of books and block the lawsuit filed in late April by Del. Tim Anderson, R-Virginia Beach, on behalf of Tommy Altman, a former Republican candidate for Congress from Virginia Beach who finished third in a four-way GOP primary last month.
Anderson, a Trump-style lawyer and 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 available to minors. This request has not yet been acted upon. Retired Judge Pamela Baskervill, who is overseeing the case after Virginia Beach judges recused themselves because the legislature appoints judges, has set the next hearing in the case for August 30.
In an interview Wednesday, Anderson said the fact that more than 20 attorneys are lining up against him is a sign of the seriousness of his case, not the type of response you’d see in a “First Amendment slam dunk case.” The demand for age restrictions on media content, he said, is “narrow” and not as new as the “book ban” headlines suggest.
“I think the majority of society accepts that they don’t want a 12-year-old going to see 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 argued that allowing the case to continue would be a dangerous step towards the kind of book bans the country seemed to have left behind.
“There was a time in American history before the development of the First The Amendment Doctrine, when best-selling, critically acclaimed books were in danger of being declared obscene,” a team of attorneys from the Washington-based firm Davis Wright Tremaine wrote in a May 30 letter to Baskervill on behalf of Barnes & Noble. “But no mainstream book from established publishers has been deemed obscene in the last 60 years.”
Lawyers fighting against the use of the obscenity law have argued that it has serious procedural flaws, including allowing courts to issue restraining orders against books without any notification or involvement of the companies that own them. sell. The Obscene Books Act creates civil proceedings against the book itself, but the criminal penalties involved can fall on anyone who sells or distributes a book deemed to be obscene.
“It’s a weird procedure to start with,” Bamberger said. “But what’s most troubling for retailers and publishers is that if in this hearing in Virginia Beach a book is found to be obscene, that applies statewide. So a bookseller who is in Arlington and knows nothing about the case, received no notification, and is in no way involved in the case can suddenly be charged with a felony for selling the book.
The defense also pointed out that the law contains no clear provision allowing the books to be considered obscene for children but suitable for adults. It does, however, allow judges to carve out a specific category of people “for whom the book is not obscene”.
From a legal standpoint, 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 Virginia Beach School Board chose to delete ‘Gender Queer’ from school libraries after a review found 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 should not have access to this material without adult supervision,” he said. “And that’s all.”
Bamberger said the obscenity law, as written, was meant to apply to material that the courts ruled no one should read and could not be used to let a Virginia resident go. in court to try to restrict what all children can read.
“That’s not what the law says,” Bamberger said. “And none of these books are obscene for adults. Clearly.”
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