In the States, Virginia Judge Rules Against Book-Banning Attempt

In Feature Articles by Porter Anderson

The Association of American Publishers and Authors Guild joined an amicus brief in this Virginia Beach effort to limit sales of two books.

Image – Getty iStockphoto: Jen Lobo

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

AAP’s Pallante: ‘Unequivocal Victory for Free Speech Rights’
As Adi Robertson is reporting at The Verge, a Virginia judge has handed book-banning opponents reason to celebrate, today (August 30) ruling that an attempt to ban sales of two books to children is not supported by Virginia’s state laws on obscenity.

In fact, Judge Pamela Baskervill of the Virginia Beach Circuit Court, has gone so far as to strike down the obscenity law as unconstitutional.

The two books include one of the titles most frequently targeted in book-banning efforts in the United States.

In a comment quickly issued from the offices in Washington, DC, of the Association of American Publishers (AAP), the organization’s president and CEO Maria A. Pallante says, “We’re gratified to see Virginia Beach Circuit Court Judge Baskervill’s orders today dismissing obscenity petitions against two books, Gender Queer: A Memoir by Maia Kobabe and A Court of Mist and Fury by Sarah Maas.

Maria A. Pallante

“The orders are a significant and unequivocal victory for the free speech rights of readers, authors, publishers, booksellers, and libraries.

“Alongside challenges from the authors and publishers of the books and other interested parties, AAP joined with authors, booksellers, and library organizations to challenge the petitions in court and call attention to their fatal legal and constitutional defects.

“In today’s order, Judge Baskervill agreed with every single one of the challengers’ arguments, vacating the earlier order to show cause and dismissing the case for lack of jurisdiction, holding that the books are not obscene, and finding the law unconstitutional as a prior restraint and for violating due process protections.”

In that latter point—a ruling that Virginia’s statute is unconstitutional—Judge Baskervill writes in Points 4, 5, and 6 of her rulings—one ruling for each of the two books:

  • “Virginia Code g 18.2384 is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.” 
  • “Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it imposes a presumption of scienter on persons who have no knowledge that a book may be considered obscene.” [The term scienter means willfully, consciously, knowingly.]
  • “Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it violates due process by authorizing judgment without notice to affected parties.”
Authors Guild: ‘A Resounding Victory’

The United States’ largest author advocacy organization, the Authors Guild, had filed an amicus brief in the case with many organizations including the publishers’ association; American Booksellers for Free Expression; the American Library Association; the Virginia Library Association; and the freedom to Read Foundation.

In media messaging this afternoon, the guild writes, “The court found that the petitioner, a candidate for political office, had failed to allege sufficient facts to show that the books were obscene, and also failed to meet the standards imposed by the US and Virginia Constitutions with respect to pleading a claim of obscenity as to adults, and as to material that is inappropriate for distribution to minors.

“The court further held that the section of the Virginia Code (18.2-384) upon which the petitioner relied was ‘unconstitutional on its face’ and violated the First Amendment and the Constitution of Virginia by: (i) authorizing a prior restraint (of speech); (ii) violating due process by authorizing judgment without notice to the affected parties and (iii) presuming scienter (or knowledge of wrongdoing) on people (including authors and booksellers), even though they have no knowledge that a book may be considered obscene.

“This undercuts the ability of future petitioners to bring similar future actions.

“This decision is a resounding victory for free speech and the First Amendment. It remains to be seen if the petitioner will appeal.”

In regards to the petitioner, Dan Kois writes at Slate that “Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, although inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader.”

In the course of the proceedings, attorneys for Barnes & Noble, the American Civil Liberties Union, and the two authors’ representation were present in the courtroom to argue against Anderson’s position.

Kois, in his report at Slate, writes, “Barnes and Noble’s attorney, Bob Corn-Revere, rejected Anderson’s claims that he wasn’t trying to ban the books. ‘When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship.’” he said.

And while attempts at right-wing book bannings are one broadly surging element of the rising authoritarian dynamics defining the political and social challenges in the United States at this point, many in the US publishing industry will be cheered to see today’s court action.

If you’d like to see the amicus brief, it can be found here, as provided by the Authors Guild. The court’s final orders can be found here for Gender Queer and here for A Court of Mist and Fury, as provided by the Association of American Publishers.


More from Publishing Perspectives on freedom of expression is here, more on the freedom to publish is here, and more on banned books is here

More from us on the coronavirus COVID-19 pandemic and its impact on international book publishing is here.

About the Author

Porter Anderson

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Porter Anderson is a non-resident fellow of Trends Research & Advisory, and he has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.