Judge tosses suit that tried to deem books obscene for kids

FILE - Amanda Darrow, director of youth, family and education programs at the Utah Pride Center, poses with books that have been the subject of complaints from parents in recent weeks on Thursday, Dec. 16, 2021, in Salt Lake City. A judge in Virginia dismissed a lawsuit Tuesday, Aug. 30, 2022, that sought to declare two books as obscene for children and to restrict their distribution to minors, including by booksellers and libraries. The books in question were Gender Queer: A Memoir by Maia Kobabe and A Court of Mist and Fury by Sarah J. Maas. (AP Photo/Rick Bowmer) (Rick Bowmer, Copyright 2021 The Associated Press. All rights reserved)

NORFOLK, Va. – A judge in Virginia dismissed a lawsuit Tuesday that had sought to declare two books as obscene for children and to restrict their distribution to minors, including by booksellers and libraries.

The books in question were “Gender Queer: A Memoir” by Maia Kobabe and “A Court of Mist and Fury” by Sarah J. Maas.

Both books describe or illustrate sexual acts that prompted the lawsuit. In a petition to the court, Tommy Altman, a Virginia Beach tattoo shop owner and former Republican congressional candidate, said the depictions were inappropriate for children.

Altman asked the court to issue an order under state law against distributing, selling or loaning the books to minors. The suit was filed in April and dismissed Tuesday before it could proceed to trial.

Circuit Court Judge Pamela S. Baskervill struck it down on jurisdictional grounds, citing state law as well as the U.S. Constitution.

For example, Baskervill wrote that Virginia law doesn't give her the specific authority to determine whether the books are obscene for minors.

The judge also wrote that restricting the books' distribution would authorize “prior restraint” of speech and violate the First Amendment. The judge also described concerns about prosecuting someone who didn't know they were selling or loaning books that were deemed to be obscene.

The judge's order comes at a time when book challenges and bans have surged across the U.S. to levels not seen in decades. Virginia has been on the frontlines, with public school curricula and books serving as a major prong for Republican Glenn Youngkin’s successful run for governor last year.

Author and publisher groups hailed the judge's decision.

Maria A. Pallante, president and CEO of the Association of American Publishers, said Tuesday that it was an “unequivocal victory for the free speech rights of readers, authors, publishers, booksellers and libraries.”

Eden Heilman, legal director for the American Civil Liberties Union of Virginia, said “access to diverse perspectives is a huge part of our democracy, and any efforts to thwart that are really concerning.”

Heilman, who represented independent booksellers and other parties in the suit, said her organization will continue to fight such legal efforts.

Many of the targeted books have focused on sexuality, gender identity or race. Kobabe's “Gender Queer,” a graphic novel that contains explicit illustrations of oral sex and masturbation, has served as a particular flashpoint.

The Virginia Beach school board removed the book from school libraries earlier this year, The Virginian-Pilot reported. Schools in Fairfax County, in northern Virginia, also briefly removed it last year before it was reinstated. Loudoun County Public Schools chose to pull the book.

In his petition against the fantasy book “Court of Mist and Fury,” Altman said it “contains pages of extreme sexual conduct not suitable for children as young as 10 years old.”

In his petition against “Gender Queer,” Altman cited content that illustrates “two minors engaged in sexual intercourse," among other actions.

Jeff Trexler, an attorney for the author of “Gender Queer," pointed out that Altman was running for Congress when he filed the suit. Altman lost in a crowded Republican primary.

“This isn't 200 pages of people from various gender identities, having sex and nothing else,” Trexler said. “It's an award-winning work as a literary memoir and as a graphic novel. It’s been relevant to lots of people in terms of understanding themselves and their children”

Tim Anderson, Altman's attorney, said the lawsuit “was never never about trying to ban gay literature or trans literature.”

“This was simply just saying these (books) have really sexual explicit content and it’s not appropriate for kids,” Anderson said.

Anderson said the suit's intent was changing a state law that determines what is obscene for both children and adults alike. Altman wanted a “carve out" that deems what's obscene for juveniles specifically.

Anderson, who is also a state lawmaker, said Altman is considering his options following the judge's order. He said one way forward could be a ratings system for books like there are for video games and movies.

“Fundamentally, what we’re trying to do is get to a point where parents are more in the driver’s seat of what their children are consuming,” Anderson said.

___

Associated Press National Writer Hillel Italie contributed to this report