Gender Queer Obscenity Lawsuit Dismissed In Virginia Courts
Lawsuits were filed last in May in Virginian courts that alleged that the graphic novel Gender Queer, written and drawn by Maia Kobabe, coloured by Phoebe Kobabe and published by Lion Forge/Oni Pres was "obscene for unrestricted viewing by minors." The criminal lawsuits were filed by lawyer Republican Virginia assembly delegate Tim Anderson on behalf of himself and Republican congressional candidate Tommy Altman who lost in the recent primary for Congress, citing an obscure state obscenity law.
We have been following the case, including author Makia Kobabe's statement and eir testimony as well as Barnes & Noble, Oni Press and CBLDF lawyers fighting the case. But it seems that there is happy ending as the court case has been dismissed. Firstly, the courts have stated that the Virginia Code does not give the court statutory authority to make a determination that the books are obscene as to minors, that the case includes defective pleading and that the obscure Virginian code the case was brought under, appears to be unconstitutional. There was an almost identical statement issued regarding the novel, The Court of Mist and Fury, which was also under a similar lawsuit.
And secondly? Gender Queer is up for FOC this week in a new edition from Oni Press, so retailers can up their orders in the knowledge that the Virginian state isn't going to stop them from getting their copies. It's a well-timed judgment, if only for publicity's sake. Here is the court ruling so you can check my maths.
IN THE CIRCUIT COURT FOR THE CITY OF VIRGINIA BEACH
In re: Gender Queer, A Memoir Case No. CL22-1985
On August 30, 2022, counsel for the parties appeared, by counsel, and presented oral argument on Barnes & Noble's Motion to Dismiss and Vacate Order to Show Cause, Oni-Lion Forge Publishing Group, LLC's Demurrer and Motion to Dismiss, and Motion to Dismiss of Maia Kobabe. The Court, having considered the Petition, the briefs submitted by the parties, and the argument of counsel, hereby ORDERS that:
The motion of the Virginia Booksellers and Interested Persons (Main Street Books, LTD d/b/a Prince Books; KatMac LLC d/b/a Read Books; One More Page, LLC d/b/a One More Page Books; Two Knikkers, LLC d/b/a bbgb tales for kids; American Booksellers for Free Expression; Association of American Publishers, Inc.; Authors Guild, Inc.; American Library Association; Virginia Library Association; and Freedom to Read Foundation) to appear as amici curiae is hereby GRANTED.
The Court further finds that:
- The Code of Virginia does not provide a Circuit Court with the statutory authority to grant the relief sought in the Petition, specifically, a determination that the book Gender Queer: A Memoir (the "Book") is "obscene as to minors," and that consequently this Court lacks subject matter jurisdiction to adjudicate this matter.
- The Petition does not allege facts sufficient to support a finding, under the terms of Va. Code § 18.2-384, that the Book is obscene.
- The Constitutions of the United States and the Commonwealth of Virginia operate as a constraint on the pleading of a claim of obscenity as to adults and as to material that is inappropriate for distribution to minors, and the Petition fails to meet the requirements of the governing constitutional rules.
- Virginia Code § 18.2-384 is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.
- Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it imposes a presumption of scienter on persons who have no knowledge that a book may be considered obscene.
- Virginia Code § 18.2-384 is unconstitutional on its face under the First Amendment and the Constitution of Virginia in that it violates due process by authorizing judgment without notice to affected parties.
- Petitioner's request to withdraw the Temporary Restraining Order was granted. The School Board's request for a Motion to Dismiss pursuant to Code of Virginia Section 18.2-383 was determined to be moot in light of the withdrawal of the Temporary Restraining Order.
The Court determines that each of its above findings constitutes an independent and alternative ground for dismissal of the Petition, and hereby ORDERS that the motions of Barnes & Noble, Inc., Maia Kobabe, and Oni-Lion Forge Publishing Group, LLC, to dismiss the Petition be and arc hereby GRANTED. As it appears from the record that amendment would be futile, leave to amend shall not be granted.
The Court further finds that its Order to Show Cause dated May 18, 2022, was issued ex pane without the benefit of briefing or argument by affected parties, and that the finding of probable cause was made on an incomplete record. Thus, it is hereby ORDERED that the Order to Show Cause dated May 18, 2022, is VACATED.
The Court having adjudicated all matters raised by the Petition, the Clerk is directed to remove this case from the active docket.
The Clerk of this Court shall send a certified copy of this Order to all counsel of record.
Entered Pamela S. Baskerville, Circuit Judge
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