The Volokh Conspiracy

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Free Speech

"Virginia Can't Force Bookstores To Card Kids for Books on Gender and Sexuality"

at least through a preliminary injunction, even if the books include some moderately graphic descriptions.


Fiona Harrigan at the main Reason site beat me to this story from last week; I criticized the initial orders (which the court has now vacated) when they were initially handed down in May (see also this post about the "taken as a whole" element of the obscenity test). You can also read one of the orders, In re: A Court of Mist and Fury, for yourself; in relevant part, it holds that,

1. 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 A Court of Mist and Fury … is "obscene as to minors," and that consequently this Court lacks subject matter jurisdiction to adjudicate this matter.

2. The Petition does not allege facts sufficient to support a finding, under the terms of Virginia Code § 18.2-384, that the Book is obscene [i.e., obscene as to adults].

3. 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 Petitions fail to meet the requirements of the governing constitutional rules.

4. Virginia Code § 18.2-384 [the obscenity injunction statute] is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia [by authorizing preliminary injunctions against distributions of works; the criminal law of obscenity is unaffected by this -EV].

5. 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.

6. 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….

The Court further finds that its Order to Show Cause entered May 18, 2022, was issued ex parte without the benefit of briefing or argument by affected parties, and that the finding of probable cause was made on an incomplete record.

I wish the judge had recognized these constitutional constraints at the outset, and refused to issue the preliminary restraints. Still, it's good the court ultimately got it right.