Twisting the Law in Virginia Beach
I’ve been meaning to write about this for a while but conflicts and lack of access to the court materials caused delay. If you follow book banning news, it’s likely you’ve heard of the attempt by two Republicans, one a current state legislator, to have Gender Queer, a graphic novel memoir, and A Court of Mist & Fury, a YA fantasy novel, declared legally obscene and forbid their sale or provision to minors (and maybe adults, more on that bellow) in Virginia. They utilized an obscure, and constitutionally dubious, 1950s statute to try and get to this. This made all the book burners so happy when they claimed a judged ruled the books obscene when in fact it was just held over for argument, now scheduled for 30 August. What is interesting, to me at least, is how the legal defense for the Republicans reads as amateurish and sneakily ambitious simultaneously.
I’ll be focusing on Gender Queer both because it’s the only one of the two I’ve read but also because that is the real gist of the case. Conservatives have been throwing around the same few panels showing sexual images/themes and screaming at folks about obscenity for over a year. The problem, as I’ve detailed so many times on here, is that obscenity law doesn’t work that way. It requires that a book must appeal to the prurient interest, be patently offensive, and lack serious/significant merit. But more importantly it must be judged as a whole. Obscenity law is built upon a foundation that rejects cherry picking excerpts and then claiming it is obscene. As the publishers and book sellers in the Virginia case have noted, the same problem recurs in the Republican attempt to criminalize these books. The Republicans identified 7 pages of 240 in Gender Queer that supposedly have dangerous sexual content. Well that doesn’t work.
The Republicans’ brief reads mostly as a political diatribe. Above is the amusing attempt to make everything one doesn’t like “Marxism.” This is particularly amusing because in the anti-censorship community the American Library Association (ALA) is often derided as moderate and minimal in their support for librarians and libraries under attack. The brief is full of conclusory statements and assertions with minimal legal support. Having read thousands of briefs in my time, I can say that legally this one is impressively weak, in part because the law doesn’t support them at all. So they try to avoid that and in the process offer up a roadmap to dramatically weakening the right to read.
Above is one of the key pieces of this proposed weakening. The brief has to acknowledge the basic requirements of obscenity law, especially that a book be read as a whole. But with no explanation or citation to legal authority, they suggest that this requirement should be judged differently. It never explains what this is but ultimately it is a call to just dump this requirement. As censors have long done, they claim that the sexual elements “serves no literary purpose beyond eliciting gratuitous elicitation of arousal in its audience” because, apparently to them, sex isn’t a part of life. When they have to finally deal with the issue of reading the book as a whole, they just assert an obviously wrong answer: “although seven pages specifically were selected out of 240 in the filing of the Petition, these pages encompass the theme of the book as a whole –portraying sexual conduct in a patently offensive way with respect to what is suitable for minors or adults.” This is ridiculous for two reasons. First, if this is the whole theme of the book, they wouldn’t have to rely on only 7 pages. Second, they haven’t read the book clearly. Kobabe’s book is about em being nonbinary and asexual. The infamous blowjob scene is actually about Kobabe being uncomfortable having sex and talking to eir partner about it and setting boundaries. There is nothing titillating about it; however, it is an important part of showing the value of consent and communication in relationships. The attempt to assert their way around this is just embarrassing.
This also reflects their shifting terms of debate. The brief begins with a declaration that this is about obscenity to minors only, not adults. But later the declare “Graphic images of fellatio and sexual intercourse is obscene to both adults and children, as depicted in Gender Queer.” So it is that the book is obscene to everyone but the Republicans push an argument that attempts to create a danger to children. At pg. 17 they have various statements about the dangers posed by material and citations - well they are just raw hyperlinks, something my undergrads know not to do - that are amusing. One is to a three page summary discussion about comic books published in 1996, one is to the American College of Pediatricians which is a conservative activist group that rejects peer reviewed research broadly, especially about trans kids, and finally an American Bar Association page (not official statement of the ABA) written by a second year law student. The best part of these last two are about exposure to porn. They have nothing to do with novels that simply have sexual themes because that isn’t porn. The attempt to erase this division is a key aim of modern book banners. They have to equate all things sexual to porn which is then treated as synonymous with obscenity. This section closes with an assertion that “Exposure to sexual content can compromise a child’s ability to establish and maintain healthy intimate relationships” without any citation at all. They couldn’t even pretend to find material on that one.
The other element of the brief I find fascinating is the attempt to bring ratings systems into this. It asserts that “Obscene movies, music, and video games are held to a universal obscenity standard and are regulated by organizations who encourage artists’ voluntary participation in open and honest labeling of obscene media to prevent minors from having unfettered access to obscene materials.” This is a reference, repeated in more detail towards the end of the brief, that various entities offer ratings. What is ignored is none of this has to do with obscenity in any of these things. Obscene movies or music are still illegal. Ratings systems are all voluntary, private affairs where industries have adopted rules to avoid governmental censorship. An R rated movie is not obscene, not even close. The ratings are idiotic and largely based on nothing more than the vibes of a small number of secret members of the rating organization. Hell, two “fucks” gets you an R and that is no where obscene.
All kinds of websites rate books and offer commentary, include those for conservative parents. Hell, here in Utah the Utah Parents United, our group of book banners, champions a system they claim is “value neutral” though of course it includes a trans or gay character as weighing for a higher, and thus negative, “rating.” But whatever, so long as they want to put it up and not have government enforce it that is fine. Parents have the power, often sadly, to control their own child’s access. They can research the books their child picks up and decide to withhold it from them. They are unfortunately allowed to try and keep their kids as ignorant as them if they want. What book banners demand, however, is the power to control the choices of all other parents for their children. This is why these Republicans want to criminalize these two books (first) and even at times assert that they are obscene for adults. If successful, they would just expand it to more and more choices.
It goes without saying that there is no legal basis for this. It is clearly unconstitutional under current First Amendment doctrine. But the Republican Party is doubling down on this rhetoric, especially after the negative effects of the dramatically unpopular overruling of Roe v. Wade plays out. And it has worked in some localities as Christian Right candidates for school boards seek to purge LGBTQ people and material from schools. But I hold out hope that no matter the partisanship of the Virginia judge, that it can’t overcome the obvious legal reality of the case.
UPDATE 8/31/22. On 30 August the hearing on the Republican motion was heard and the judge dismissed the case. From press reports, the court found that the odd, outdated obscenity law would at minimum violate due process as it would allow one local court to criminalize specific books across the state without notice to sellers. This was one of the many problems of this case and an easy ground to dismiss on. Amusingly, the story notes the Republicans arguing that there needs to be a different standard for obscenity for minors. There is, that isn’t in dispute, but that standard still requires that the book be judged as a whole, according to its dominant theme. It is this requirement that book banners simply refuse to acknowledge.
