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Va. Republicans seek to limit sale of 2 books in Barnes & Noble for ‘obscenity’

(Gene J. Puskar/AP)

Two Virginia Republicans have asked a court for restraining orders that would prevent private bookseller Barnes & Noble from selling two books to minors, marking an escalation in the conservative campaign to limit students’ access to literature.

The two books are “Gender Queer” by Maia Kobabe, a memoir about identifying as genderqueer or nonbinary, and “A Court of Mist and Fury,” a fantasy novel by Sarah J. Maas. The two Republicans, Del. Timothy Anderson of Virginia Beach and Tommy Altman, a congressional candidate, requested the orders from Virginia Beach Circuit Court on Wednesday as part of their larger, ongoing lawsuit targeting the books.

The requested restraining orders would also prohibit distribution of the two books by Virginia Beach City Public Schools. The board of that school system voted this week to remove all copies of “Gender Queer” from its libraries over its sexual content.

The aim of the Republicans’ overall suit — in which Anderson, a lawyer, is representing Altman — is to prevent the distribution of both books to minors without parental consent, Anderson said in an interview Friday. The restraining orders are a temporary measure; he and his client are asking that they remain in place while the suit proceeds. The Virginia Beach court has yet to respond to their request.

The request for restraining orders comes two days after retired judge Pamela Baskervill issued a ruling in the suit finding “probable cause” that both books qualify as obscene. Per a little-known and little-used section of Virginia law, the judge’s formal declaration of obscenity opened the pathway for Anderson to request the restraining orders. A retired judge is ruling because the other judges in Virginia Beach recused themselves, according to Anderson.

“These books … are hypersexual and have extreme vulgar and sexual content in them,” Anderson said. “Tommy Altman is a father, he has kids in the public school system, and that’s what this is all about.”

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Kobabe declined to comment Friday. Maas did not respond to a request for comment, and neither did a spokeswoman for Virginia Beach schools.

Barnes & Noble said in a statement Friday: “As booksellers, we carry thousands of books whose subject matter some may find offensive. … We ask that our customers respect our responsibility to offer this breadth of reading materials, and respect also that, while they chose not to purchase many of these themselves, they may be of interest to others.”

Book bans, although nothing new in American life, have soared to unprecedented heights this academic year, with the largest number of book challenges or removals from school libraries since the American Library Association began tracking the issue decades ago. A Pen America report published in April found there have been 1,586 book bans in schools over the previous nine months, most of them targeting books by and about LGBTQ people and people of color.

Republican lawmakers nationwide have also begun proposing legislation that would limit what titles students can search for in school library databases.

But the requested restraining orders on “Gender Queer” seem to open a new front in the conflict.

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Patrick Sweeney, the political director for EveryLibrary, a nonprofit group that advocates for libraries, called the tactic novel but unsurprising. He said he expected that conservative legislators would move on from trying to limit what schoolchildren can read by working to limit what the general public can read.

He called it “interesting” that the Republican Party, which has long promoted deregulating private businesses, is now “attempting to regulate private businesses based on their political and religious ideologies.”

Sweeney added that he finds the restraining orders alarming. “One of the things we often hear from people [who dismiss concerns about] book banning is, ‘Well you can still buy it at Barnes & Noble,’” he said. “Clearly, soon you won’t be able to.”

“Gender Queer,” an illustrated memoir, was the most challenged book in the United States in 2021, according to the American Library Association. Written in the form of a graphic novel, it tracks author Kobabe’s path from adolescence to adulthood and her coming out as gender nonbinary and asexual.

It also includes graphic sexual scenes, including a depiction of oral sex and masturbation as well as a sex toy. Parents have criticized it for these scenes and for one panel of the story that shows a sexual fantasy of the author’s in which an apparently teenage youth is about to engage in fellatio with an older, bearded man. Parents have called this scene pedophilia.

“A Court of Mist and Fury” has drawn less attention and opposition but has recently begun appearing on parents’ lists of objectionable books, in places such as Brevard County, Fla.; Nampa, Idaho; and Conroe, Tex. The fantasy novel is the second in Maas’s best-selling Court of Thorns and Roses series, which retells and re-envisions well-known tales and myths such as “Beauty and the Beast” and the saga of Hades and Persephone.

Common Sense Media, a widely used book review site for parents and educators, says “A Court of Mist and Fury” is a “dark faery romance … filled with sex, gore, magic” and recommends it for ages 17 and up.

Anderson said the lawsuit against “Gender Queer” and “A Court of Mist and Fury” began last month when Altman engaged his law firm and asked for legal means to limit access to the two books. As Anderson pursued his client’s request, he discovered a dusty section of Virginia law that had not been invoked since the 1970s, he said, when it was wielded against pornography.

That law allows any citizen to file in court “for adjudication of the obscenity of a book” offered for commercial distribution in any county or city in the state. Virginia state code defines something as “obscene” if it appeals “prurient interest in sex,” goes “substantially beyond customary limits of candor in description or representation” and lacks “serious literary, artistic, political or scientific value.”

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If the judge finds the book is not obscene, the filing is dismissed. But if the judge finds there is “probable cause” that the book is obscene, the case continues forward with the court requesting a response from the “author, publisher, and all other persons interested in the sale or commercial distribution of the book.” These parties have 21 days to respond.

Whether they do or not, the judge will hold a hearing at the end of 21 days and make a final decision on whether the book qualifies as obscene. At this hearing, the judge is supposed to consider the author and publishers’ “intent” and “reputation,” “the degree of public acceptance of the book,” how it was advertised and promoted, and “the artistic, literary, medical, cultural and educational values, if any, of the book considered as a whole.”

After the hearing, the judge makes a final determination of whether the book qualifies as obscene. If not, nothing happens — but if so, it becomes illegal under Virginia law to distribute or sell or lend the material.

Anderson filed under this law, but he is seeking a modified version of the obscenity ruling — namely, that “Gender Queer” and “A Court of Mist and Fury” be ruled obscene only for minors. If he is successful in his suit, it will become illegal for minors to check out those books in Virginia Beach school libraries or buy them at the two Barnes & Noble bookstores in Virginia Beach. But, he noted, children’s parents could still check out the books on their behalf.

“This is just going to put these books in a category of ‘available to adults’ rather than ‘available to children,’” he said. “This happens in bookstores all the time. Lots of bookstores sell adult magazines, and children can’t walk in and buy an adult magazine — it’s age-restricted.”

For now, Anderson’s suit is still in the early stages. Baskervill ruled on Wednesday that there is “probable cause to believe that [both books are] obscene for unrestricted viewing by minors.” The Virginia Beach school system, Barnes & Noble, the authors and the publishers of both books have until early June to respond to the ruling.

The Virginia law also specifies that, once a judge finds “probable cause” that a text is obscene, “the court may issue a temporary restraining order against the sale or distribution of the book alleged to be obscene.”

Based on that provision, Anderson filed his twin restraining orders.

“There is no First Amendment right to distribute sexually explicit materials to minors,” he said.

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