A Virginia district judge dismissed an obscenity lawsuit filed in that state against Maia Kobabe and Oni-Lion Forge using a Virginia law that went into effect earlier this year that could have had Kobabe's acclaimed graphic novel memoir, Gender Queer, ruled "obscene" and banned from sale in the state. The judge determined that the new law violated not only the First Amendment of the United States Constitution, but also the Constitution of Virginia itself.

Virginia State Delegate Tim Anderson (who is an attorney in Virginia Beach) and his client, Tommy Altman, filed a pair of lawsuits against both Kobabe and Oni-Lion Forge, as well as Barnes & Noble (for selling Gender Queer to minors) using a new Virginia law that became effective on January 1, 2022 that allows citizens to have books deemed "obscene" (even if a book is deemed obscene, the courts can rule that a book would be obscene only for certain age groups of people, like a book that would be obscene for a five-year old would not be obscene for a twenty-five-year-old).

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Anderson used the part of the law that stated, "Whenever he has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book, any citizen or the attorney for the Commonwealth of any county or city, or city attorney, in which the sale or commercial distribution of such book occurs may institute a proceeding in the circuit court in said city or county for adjudication of the obscenity of the book."

Judge Pamela Baskervill had previously found probable cause that Gender Queer (as well as a second book that Anderson filed a lawsuit against, Sarah J. Maas‘s 2016 fantasy novel A Court of Mist and Fury) could possibly be deemed obscene, but in throwing out the lawsuit, she didn't even really consider the merits of the obscenity charge itself, instead highlighting the unconstitutional nature of the new law that Anderson was relying upon in his suit.

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Baskervill determined that the law was over-broad and confusing and could cause “prior restraint,” which is judicial suppression of material that would be published, on the grounds that it is harmful. The courts take a very hard line when it comes to prior restraint, as it obviously has a negative effect on freedom of speech, and Baskervill felt that this law did, indeed, violate the First Amendment's freedom of speech protections. She found the law invalid on its face and noted, “It is not the court’s place to legislate."

This case will likely be appealed, and it is possible that the Virginia General Assembly will now revisit the law in question. Eden Heilman, legal director for the ACLU of Virginia, noted, “We are very pleased with the ruling today,”

Source: Virgina Mercury