吃瓜大本营

The books are Gender Queer, a Memoir, by Maia Kobabe, an autobiographical graphic novel that depicts the author鈥檚 experience as a non-binary person; and the fantasy novel A Court of Mist and Fury, by Sarah J. Maas.

The proceedings were initiated pursuant to Virginia Code 搂 18.2-384鈥攁 law that has not been used for decades, but which purports to allow any individual to file a petition claiming that any book is obscene. A judge is then tasked with determining whether there is probable cause to find that the book may be obscene. If so, the proceeding can result in a court order enjoining the distribution of the challenged book anywhere in the state of Virginia merely upon that finding of 鈥減robable obscenity.鈥� And if the book is ultimately adjudged obscene based on local community standards, the proceeding will result in a presumption that anyone who sells or even lends the book knows it is legally obscene, opening the door to criminal prosecutions for book distribution.

In these proceedings, a Virginia resident petitioned a state trial court to find that the books were 鈥渙bscene for unrestricted viewing by minors鈥濃�攁 category that the relevant Virginia statute doesn鈥檛 contemplate鈥攁nd asked the court to enjoin Virginia Beach public schools and Barnes & Noble from making the books available to minor readers without parental consent. The challenge comes amid increased efforts to ban books around the country, but appears to be the first attempt to ban any sale or distribution of a book statewide.

On May 18, 2022, the Virginia Beach Circuit Court issued orders finding 鈥減robable cause to believe鈥� the books were 鈥渙bscene for unrestricted viewing by minors鈥� and ordered the books鈥� authors and publishers to show cause why the books should not be adjudged obscene. The authors, publishers, Barnes & Noble, and our clients have all submitted filings in response.

Not only are the proceedings an abuse of the statute鈥攚hich does not allow a determination of obscenity for minors, rather than the community writ large鈥攂ut, as our clients argue, the statute is also unconstitutional.

It vests in individual trial courts located in one city or county the authority to enjoin the sale, publication, and distribution of a book across Virginia鈥攚ithout requiring notice to all parties governed by the order (and requiring only four days鈥� notice to those parties the court does choose to notify), an adverse hearing, or even a final judicial determination that the book at issue is in fact obscene. This creates the risk that publishers, distributors, and booksellers who have no knowledge that a book has been so much as challenged鈥攁nd who may never appear before the deciding court鈥攎ay still be bound by the court鈥檚 order.

Furthermore, after entry of a temporary restraining order or a final adjudication of a book鈥檚 obscenity, the government can impute knowledge of a book鈥檚 obscenity to anyone in the state who 鈥減ublishes, sells, rents, lends, transports, . . . or commercially distributes or exhibits the book.鈥� This raises the threat of liability for incredibly broad swaths of people鈥攊ncluding booksellers, teachers, parents, and others鈥攚ho, again, may not have had the chance to appear before the deciding court. In essence, it creates a strict liability regime for selling or lending books.

Finally, because Virginia applies local rather than statewide community standards to determine obscenity, the law appears to unconstitutionally allow an injunction against the circulation of a book deemed legally 鈥渙bscene鈥� in one community in others where the book would likely not be held obscene at all.

The proceedings are currently pending before the Virginia Beach Circuit Court. Our clients are represented by the ACLU, the ACLU of Virginia, and Michael Bamberger of Dentons, general counsel to Media Coalition.