Virginia judge ends attempt to restrict the sale of LGBTQ+ books by Barnes & Noble, declares state obscenity law unconstitutional

---

A Virginia trial judge dismissed a lawsuit against two “obscene” books, ending the efforts of a state legislator to prevent a corporate bookseller from selling them to children without parental consent.

Key Players

Del. Tim Anderson (R) filed the lawsuit. He represents the 83rd District in the Virginia House of Delegates, encompassing parts of southeastern Virginia, including Virginia Beach and Norfolk. 

Tommy Altman retained Anderson as legal counsel. He came in third in the June 2022 Republican primary for the state’s 2nd Congressional District, encompassing the southern tip of the Delmarva Peninsula, and parts of Williamsburg and Virginia Beach.

Barnes & Noble, the largest bookstore chain in the United States, has over 600 stores nationwide. 

Further Details

Over the past few years, a rising movement of parents, public school boards, and state governments has restricted certain books from being taught in classrooms or made available in libraries. Free expression nonprofit PEN America reported 2,532 instances of individual book bans from July 2021 to June 2022, a number of which disproportionately targeted underrepresented identities, such as LGBTQ+ individuals or people of color. 

In May 2022, Anderson filed the lawsuit on Altman’s behalf, seeking to have the court force Barnes & Noble to require parental permission for minors to buy Gender Queer by Maia Kobabe, a graphic novel memoir that depicts sexual acts in two illustrations, and A Court of Mist and Fury by Sarah J. Maas, a fantasy novel with multiple sex scenes. Both books have been targeted in school systems across the country. Gender Queer was removed from Virginia Beach school libraries that same month. 

Anderson called the books “extremely vulgar” and “extremely obscene,” asserting that they were “too sexual” and “too graphic for children to read” without parental consent, ABC 13 reported. Anderson insisted, however, that the lawsuit was not about “banning” books. 

The challenge came under Virginia’s obscene book law. Passed in 1950, it allowed residents to petition to have a book declared obscene. If a judge agreed, anyone who continued to sell the book could face criminal charges. According to The Washington Post, the law was considered highly obscure and, until Anderson’s lawsuit, rarely enforced.  

At a preliminary hearing, Judge Pamela Baskervill, who came out of retirement to hear the case because the other Virginia Beach judges had recused themselves, ruled there was probable cause to consider the books obscene, allowing the case to proceed, The Post reported.  

Multiple groups opposed the lawsuit. The state branch of the American Civil Liberties Union (ACLU), a nonprofit that defends constitutional rights, said the state obscenity law violated the First Amendment and had several “constitutional problems,” including that “an order that stopped these books from being circulated would affect people who are not a part of the court case (and were not even necessarily aware that the court case is happening),” CBS 3 reported. 

Barnes & Noble told CBS News that it carries “thousands of books whose subject matter some may find offensive,” asking customers to “respect our responsibility to offer this breadth of reading materials, and respect also that, while they chose not to purchase many of these themselves, they may be of interest to others.” 

Outcome 

Authors, bookseller organizations speak out

On June 14, Gender Queer author Maia Kobabe responded to the petition in a legal document that requested the court either to dismiss the case or to rule the books not to be obscene. Eight days later, multiple independent bookstores and organizations representing book distributors, authors, and libraries filed joint motions proposing the court dismiss the case, claiming that restricting the books violated the First Amendment.

The National Coalition Against Censorship, an alliance of more than 50 national nonprofits that engage in First Amendment advocacy, stated, “Should the petitioners succeed: the law in question will make it illegal for any bookstore to sell these books in Virginia. … Librarians, educators, authors, publishers, and booksellers will be targeted for making available books that everyone has the right to choose to read.”

Baskervill dismisses lawsuit, rules obscene book law unconstitutional 

On Aug. 30, after a hearing, Baskervill dismissed the lawsuit, writing that the plaintiffs had failed to prove the books were obscene and declaring the 1950 obscenity law was “unconstitutional on its face” and violated the First Amendment. 

Baskervill addressed her previous probable cause ruling, saying she had made the preliminary decision based on “an incomplete record” and “without the benefit of briefing or argument by affected parties,” The Post reported.     

Altman decides not to appeal, decision stands

On Oct. 6, The Virginian Pilot reported that Altman decided not to appeal, but Anderson said the “fight is far from over.” 

 “This puts an end to a case that should never have been filed,” Robert Corn-Revere, an attorney for Barnes & Noble, wrote in a statement. “Hopefully, this outcome will serve as a lesson for others who would use the law to restrict what people can read.”

Anderson previously had said he was considering introducing a bill in the Virginia General Assembly that would create a rating system for books similar to the existing rating systems for movies, music, and video games.