Judge throws out obscenity case attempting to restrict sales of books in Virginia Beach

VIRGINIA BEACH – A judge on Tuesday dismissed an attempt to use an arcane Virginia obscenity law to prevent bookstores from selling two titles to minors after finding the law unconstitutional on due process and free-speech grounds.

State Del. Tim Anderson, R-Virginia Beach, filed the suit earlier this year on behalf of former GOP congressional candidate Tommy Altman. They characterized it as part of a broader effort to strengthen parental control over what children read, while critics denounced it as old-fashioned censorship.

Retired Judge Pamela Baskervill, who had issued an earlier order finding probable cause to believe the books “Gender Queer” and “A Court of Mist and Fury” could be considered obscene, largely sided with lawyers defending the continued distribution of the books. But Tuesday’s hearing in Virginia Beach focused less on the merits of the books or First Amendment issues and more on flaws with the obscenity law itself.

Lawyers for numerous free-speech groups, publishers, authors and bookstores who fought against an obscenity ruling praised the outcome as a win for those who oppose government edicts about what books can and can’t be read.

“The Constitution is the law the state has to obey,” said Robert Corn-Revere, a First Amendment lawyer who represented Barnes & Noble in the case.

The Virginia law allows citizens to sue books themselves and have judges decide whether they’re obscene or not. If a book is deemed obscene, bookstores that continue to sell it can face criminal penalties. That setup, Baskervill concluded, creates severe confusion about who the parties in the litigation are and whether those it could impact are even aware of any restrictions the courts impose. Baskervill also ruled the law allows unconstitutional “prior restraint,” enabling the government to restrict speech or expression before it happens.