‘Obscenity’ is narrowly defined by the law. Ruling in Virginia Beach ‘would be a rarity.’

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The legal effort in Virginia Beach to get two school library books ruled obscene may be a longshot — in part because, a pair of local legal experts say, such a legal conclusion is quite rare.

In Virginia Beach Circuit Court, Judge Pamela Baskervill, found probable cause that “Gender Queer: A Memoir” by Maia Kobabe and “A Court of Mist and Fury” by Sarah J. Maas are “obscene for unrestricted viewing by minors.”

But what exactly is “obscene?”

Virginia law says it’s any item containing sex as a dominant theme “which, taken as a whole, does not have serious literary, artistic, political or scientific value.” This can be anything from books to photos to sound recordings.

Virginia Beach lawyer Kevin Martingayle said the circuit court’s decision is going to be a “tough call” and the context of each book as a whole will play a part in the decision.

Martingayle pointed out a rare example of a work being challenged and the court actually ruling something was obscene: the 1973 case of Commonwealth v. “The Devil in Miss Jones” in the Richmond Circuit Court. Judges in the case outlined the film, saying that the only scenes that did not contain any sexually explicit content were the opening and closing scenes.

In its review, the court looked to see if the film did any of the following under contemporary community standards: appealed to the “prurient interest,” described sexual conduct in an offensive way and lacked serious literary, artistic, political or scientific value.

These standards had to be applied to the film as a whole.

Under multiple different obscenity tests, the court found “The Devil in Miss Jones” met all of those marks, ruled it obscene and issued a temporary restraining order.

The multiple tests the film went through in that court case are an example of the hurdles items must overcome in order to be considered obscene under the law. Martingayle said this is to protect the constitutional rights to free speech and due process.

“You can’t just have government officials and law enforcement officers deciding on an ad hoc basis what they do and don’t like,” he said. “The expression ‘slippery slope’ has been overused over the years, but it certainly fits.”

Matt Callahan, a senior staff attorney with American Civil Liberties Union of Virginia, called the judge’s decision concerning.

“Free expression is one of the bedrock principles of our country,” he said.

If the books are found to be obscene, they no longer would have constitutional protection. Brad Jacob, an associate dean at Regent University Law School, said losing that protection essentially means that if the government decided to ban the obscene item, there is no recourse for citizens to change it other than electing new officials.

“They could kind of do whatever they want,” Jacob said.

As an example, Jacob said that the government could choose to prohibit the possession of “Gender Queer” and “A Court of Mist and Fury” if they are ruled to be obscene “in that very narrow category.”

Still, he said getting the ruling “would be a rarity.”

Congressional candidate Tommy Altman, who filed the original petition against the books, called the judge’s preliminary decision a win for Virginia Beach parents. His petition outlines sexually explicit content such as graphic descriptions in certain passages and illustrations in both books.

“Most adults feel uncomfortable having these words read aloud,” Altman said.

The parents — not the schools — should determine what content their children should be allowed to see, Altman has said. He said he hopes that this latest court action encourages distributors to do the “responsible thing.” If children need an adult with them to see an R-rated movie, then he thinks Barnes & Noble can do the same thing.

“This is not about book banning,” he said. “It’s about restoring parental rights.”

Though Altman said he hopes the petition is the end of it, this is a case that will likely be challenged down the road for free speech and due process concerns, Martingayle said.

Next, authors Kobabe and Maas and their publishers have to respond to the allegations.

Kobabe did not respond to a request for comment. A previous statement from the publisher was provided instead.

“The fact is, ‘Gender Queer’ is an important, timely piece of work that serves as an invaluable resource for not only those that identify as nonbinary or genderqueer, but for people looking to understand what that means,” said James Lucas Jones, publisher of Oni Press, in the emailed statement. “Limiting its availability is short-sighted and reactionary.”

Maas and her publisher, Bloomsbury Publishing, did not respond to requests for comment.

Altman and his attorney, Tim Anderson, who is a state delegate, also are seeking a temporary restraining order prohibiting the sale or distribution of those titles to minors, specifically mentioning Barnes & Noble and Amazon in the petition.

Jacob said that without the obscenity ruling, there is likely little to be done with private businesses.

On the other hand, Virginia Beach Public Schools have the ability to determine the books are inappropriate and choose to remove them from their bookshelves, Jacob said.

Virginia Beach Public Schools already reviewed “Gender Queer” and determined its content to be “pervasively vulgar.” Recently, schools were instructed to remove the books from their shelves.

When asked about the petition and show cause order, the division said in a statement, “The School Board and the School Division are not parties to the Petition For Declarations for Adjudication of Obscenity Pursuant to 18.2-384 of the Code of Virginia. After consultation with the School Board, the School Board’s legal counsel will address with the Court the applicability of this law to the School Board and the School Division.”

The division has heard many complaints about certain titles in school libraries. “A Court of Mist and Fury” is one of them.

Martingayle described the situation as yet another culture war that is going to see many constitutional challenges.

“It strikes me as a tremendous waste of assets and completely unnecessary division,” Martingayle said. “All we’re doing is dividing the citizens further and spending a lot of time and money arguing over things that really don’t deserve attention.”

Kelsey Kendall, kelsey.kendall@virginiameida.com