Virginia Won’t Ban Books for Obscenity—for Now

From Slate:

A Virginia state court judge dismissed the petitions against two books Tuesday, ending for now an attempt by local Republicans to rule the books obscene.

“I agree with the defense that the statute is facially invalid,” said retired judge Pamela S. Baskervill, who was assigned the case after all the local circuit court judges recused themselves. She was referring to the obscure Virginia state law that a Republican state legislator had used in his attempt to declare Maia Kobabe’s graphic memoir Gender Queer and Sarah Maas’ fantasy romance A Court of Mist and Fury “obscene for minors.”

Tim Anderson, a lawyer and Republican Virginia state delegate whose district includes Virginia Beach, argued in court that the statute, though inartfully worded, allowed a judge to rule on the books’ obscenity for a specific class of reader. (Another Republican, Tommy Altman, filed the petition; Altman recently lost his primary for a House seat in Virginia’s 2nd district.) “Even if one part of the law is deficient, it doesn’t make the entire law unconstitutional,” he argued. “Look, the General Assembly is a citizen legislature. We’re not lawmakers. Things like this happen and a law get written a confusing way.”

“But I have to interpret it!” Baskervill said from the bench. In her orders, she declared the law “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”

. . . .

The case—part stunt, part trial balloon—had drawn attention as a worrying salvo in the right wing’s continuing attempts to redefine obscenity to mean, as PEN’s Jonathan Friedman told me, “any mention of sexuality or other topics they find distasteful.” More than 10 lawyers appeared in court Tuesday opposing the petition—representing Maas, Kobabe, their publishers, Barnes and Noble, the ACLU, and a coalition of Virginia bookstores and literary nonprofits. In arguments, 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.

After Baskervill dismissed the case, I asked Eden Heilman, the legal director of the Virginia ACLU, if it didn’t seem annoying that the ruling found fault with the law, not with the operatives trying to use a bad law for bad ends. “No, we’re pleased she focused on the law,” Heilman said. “The law is the problem.” While this court decision won’t invalidate the statute—it would take the legislature, the Virginia Supreme Court, or the U.S. Supreme Court to do that—Heilman said she thought this decision would prevent other would-be litigants from attempting to use the law in the same way.

Link to the rest at Slate

PG says that any elected representative in a state legislature who says citizens who run for seats in that legislature are “not lawmakers” is a complete idiot.

They are running in such elections to become lawmakers. Voters choose them to become lawmakers. A majority of the legislators make laws, zillions of them, in every state in the US plus the federal government.

The judge who complains, “But I have to interpret it!” is also sounding a bit idiotic. That’s one of the things judges do on a regular basis – “Did Johnnie Outlaw violate Section 237 of the laws of the State of Schock?” If the answer is affirmative, the judge decides what punishment is appropriate. If the answer is negative, Johnnie goes free.

9 thoughts on “Virginia Won’t Ban Books for Obscenity—for Now”

  1. PG, I think you are a bit hard on the judge. I did not read her comment as a complaint, more as a – probably exasperated – explanation to the idiot Tommy Altman that his inability to write a non confusing law didn’t mean that she could ignore the text.

    I also read Tommy Altman’s “not lawmakers” comment less literally than I think you do. I think he accepts that they are writing laws but just thinks that actually doing this properly is beyond their abilities.

  2. Again we have a simple test we can all do at school board meetings:

    Publicly read from the books in question. One speaker after another can read segments into the record. See who objects.

      • Sure. Let the authors object to having excerpts from books in school libraries read at public meetings. Maybe picket signs with, “Don’t Read My Book?”

        • I’m not suggesting the author object to a reading, but exactly what is done to the “record” of such a meeting? If it is transcribed and published, or simply filmed/recorded and then posted on line, it does raise some interesting copyright questions (particularly a transcription, since a recording by multiple speakers, mostly not qualified for the job, would not make a good substitute for the audio book)

          • It would have to be a VERY short book to exceed the limit for “fair use.” Particularly in a public government debate about the very same book.

            Note that the length of the readings is typically much shorter than PG regularly snips out of copyrighted material – and (so far as I am aware) no process server has shown up at the door of Casa PG.

          • Correct me if I’m wrong, but it strikes me that you’re concerned about the action rather than the impact of the action.

            Different legal system, different rules. The biggest is that Fair Use doesn’t list only tbe actions permissible but rather tests for the impact of the action.

            Reading extracts of a book in public *is* a “performance” and archiving it and putting it online *is* publishing. But both are Fair Use by US legal doctrine under the various tests courts use. The reading, in context, falls under the criticism copyright exemption as well as passing the “substitution” test and the “de minimis” rule.

            https://www.copyright.gov/fair-use/more-info.html

            Fair use isn’t absolutist (despite the BPH ‘s teeth grinding) which is why things like “look inside”, parodies, citations, and reviews can exist.

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