There was a time in America when all someone had to do was charge that a book was “obscene” and it would be banned in some parts of the country. It didn’t matter if the book was, in fact, obscene or even if it contained any discussion of sex. The term was invested with great power.
The Supreme Court in 1973 established a three-pronged test defining obscenity. It’s a pretty high bar that made many of these charges harder to bring, but that doesn’t mean they’re dead.
Two conservative activists in Virginia recently tried to use an obscure state anti-obscenity law to attack two books, even challenging the right of bookstores to sell them. Thankfully, they failed – this time.
Earlier this year, Tommy Altman sued to stop Barnes & Noble stores from selling two titles, Gender Queer: A Memoir by Maia Kobabe, and A Court of Mist and Fury, a fantasy novel by Sarah J, Maas. In court, Altman was represented by Tim Anderson, a Republican member of the House of Delegates representing Virginia Beach.
Altman and Anderson employed the old standby that they were only trying to protect children and claimed they were merely asking that Barnes & Noble not sell the books to minors without parental permission. But if the titles had been declared legally obscene, they would have been beyond protection of the law and could have been pulled from the shelves so no one could buy them.
On Tuesday, state Judge Pamela Baskervill dismissed the lawsuit. Baskervill determined that neither book met the legal definition of obscenity. She also ruled that sections of the Virginia anti-obscenity statute are unconstitutional because the law enables censorship by assuming that booksellers are knowingly violating the law when they might have no idea that a particular title on their shelves could be considered obscene.
Altman and Anderson are threatening to appeal Baskervill’s ruling, and Anderson is making noise about introducing legislation that would make it easier to ban books. Virginians who value the freedom to learn should remain alert.