"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.

Comments

[John F. Carr]

According to §18.2-384G “the court in its discretion may except from its judgment a restricted category of persons to whom the book is not obscene.” While this clause was mainly intended to exempt “scholars, scientists, and physicians, for whom the book may not have prurient appeal” arguably it also allows a finding that a book is obscene except for adults.

I have an alumni ID card from a sciency school. It would be fun to show it to a bookseller when asked for proof that I will not let my lustful thoughts overcome my senses.

[DaivdBehar]

Good idea lawyers, prohibit books. Make these boring books irresistible. All kids will now want to start reading instead of being on video.

[The Margrave of Azilia]

In sum, Virginia can ban works which are obscene as to minors, but this statute is the wrong vehicle for doing that.

[John Rohan]

Is the judge going to strike down prohibitions against selling pornographic magazines/videos to minors? What is the legal difference between a book and a magazine?

[DaivdBehar]

What is this thing you call, book?

[Rossami]

– Pornography would still be “obscene as to adults” (even though legal for adults), therefore fall afoul of the subject matter jurisdiction problem.
– Actual sale to a minor is a specific act prosecuted after the fact so that avoids the ‘prior restraint’ problems.
– Traditional law against selling pornography to minors also does not suffer the ‘scienter’ and the ‘notice to affected parties’ problems.

In short, no this will not likely lead to striking of existing prohibitions against selling pornography to minors but the reason is because of all the other defects in this VA law, not because there is a difference between a book and a magazine.

[Rossami]

typo in bullet 1 – should be “not fall afoul”.

[Rev. Arthur L. Kirkland]

Congratulations to Craig Thomas Merritt and R. Braxton Hill, IV (of Merritt Law) and Robert Corn-Revere, Laura Handman, Linda Steinman, and Amanda Levine (Davis Wright Tremaine), the lawyers who represented Barnes & Noble and vindicated the First Amendment in this case!

[DaivdBehar]

Revvie Boy, stop imitating Eugene. It is not lawyerly.

[Rev. Arthur L. Kirkland]

If I were imitating Prof. Volokh, I would not have congratulated these particular lawyers.

[Martinned]

Sure, but can it require companies to include coverage for HPV vaccinations and PrEP in the insurance packages they provide to their employees?

https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.92.0.pdf

[Roger S]

One of the books shows a man having sexual relations with an underage boy. If that is not obscene, then what is?

[Eugene Volokh]

The obscenity test asks whether the work, taken as a whole, appeals to a shameful or morbid interest in sex, and whether the work, taken as a whole, lacks serious scientific, literary, artistic, or political value. (For more on this, see this post.) That a book or a movie contains a sexually themed scene, whether depicting sex with a minor or otherwise, is thus not enough to make it obscene.

There is no such “taken as a whole” requirement for other exceptions, such as child pornography, so if the book had a picture of a real minor having sex (a necessary element of child pornography), then it would be constitutionally unprotected. But that’s a separate exception, which isn’t applicable here.

[M L]

Seems quite subjective.

[MatthewSlyfield]

It’s completely subjective. “I know it when I see it.”

[Sarcastr0]

No, that was the old test.

[Sarcastr0]

So are a lot of constitutional tests. See also: Establishment Clause, political speech, ‘deeply rooted in the nation’s history and traditions’

I thought you were a lawyer?

[M L]

Which demonstrates why the legislative power belongs to the legislature, but has been usurped by federal judges, and why the first amendment was never intended to be enforced against the states by federal judges.

[Sarcastr0]

the first amendment was never intended to be enforced against the states by federal judges.

Sorry, but even if you wish the Civil War turned out differently, the post-war Amendments are real, the federal-state balance of power shifted, and Bingham is not someone you get to just ignore.
See also your reading birthright citizenship out of the 14th, which is more mighty lifting to ignore the intent and practice of this post-Civil War Amendment.

Rare to see a point of view to the right of even Justice Thomas. There was that one guy who thought Marbury was wrongly decided, I suppose…

[M L]

I was referring more to the first amendment itself and its original meaning. Highly subjective lawmaking by the judiciary illustrates why the founders would not have countenanced centralizing such authority in the federal judiciary.

It’s true that Bingham said things supporting incorporation. The citizenship clause is not as close of an issue as incorporation, I think. You actually have to do heavy lifting to ignore the intent and practice, in order to think that citizenship is automatically granted to those born here to tourists that are temporarily in the country.

[David Nieporent]

You actually have to do heavy lifting to ignore the intent and practice, in order to think that citizenship is automatically granted to those born here to tourists that are temporarily in the country.

You have to ignore both text and legislative history to think otherwise.

[M L]

No, you!

[apedad]

Over the past two decades, Virginia has steadily turned blue and Youngkin’s election to Gov. was just a bump in the road.

Thanks to the Great State of Northern Virginia we’ll make the state solid blue for the rest of the century (and will help then push North Carolina that way too).

[DonP]

Ahhh, yearning to going back to your traditional Confederate roots again? Scheduling your neighborhood Klan meetings will be so much easier when you can all come out of those Deep Blue closets.

Expect more “Bumps in the Road” weasel.

[Rev. Arthur L. Kirkland]

There are still plenty of drawling, uneducated, Bible-clutching, economically inadequate, racist, gay-hating conservatives in southern and western Virginia, but not enough to prevent continuing improvement in Virginia’s electorate.

Unless conservatives perfect a machine that mass-produces half-educated, superstitious, roundly bigoted, rural, old, white, stupid males, of course — and the Federalist Society figures a way to register those newly minted goobers to vote — in which case Virginia’s future might not belong to Democrats.

Good luck with that one, clingers.

[Nige]

This obsession with Sarah Maas is weird. Her books aren’t for kids, though teenagers probably read them, but teenagers also read Stephen King and EL James. Okay it’s not WEIRD, it’s explicitly homophobic.

[Eugene Volokh]

Nige: I haven’t read Court of Mist and Fury, but accounts of it, including by people who argue it’s too pornographic, suggest that it describes heterosexual sex (see, e.g., here) — am I missing something?

[Nige]

Hmm, maybe I’m mixing it up with another title, I thought it had LGTBQ characters.

[Nige]

Hah, yeah I can see why adolescents would be all over that, to the disapproval of assorted moral guardians.

[WuzYoungOnceToo]

Hmm, maybe I’m mixing it up with another title, I thought it had LGTBQ characters.

That’s the sort of thing that happens when you’re constantly trying to manufacture excuses to accuse people of things in order to demonize them as a way to discredit their arguments.

[Sarcastr0]

So this is a thread about moral scolds trying to ban books, and accusing those who oppose them of being ‘groomers’ i.e. child molesters.

Maybe make a different choice for your strawman telepathy.

[Nige]

Much of the book-banning and librarian-harassment of the right seems focused on LGTBQ stuff, but it’s nice they’re consistent in their efforts at enforcing sexual repression on society across all sexualities.

[F.D. Wolf]

Is it common practice for a circuit judge in Virginia to summarily declare a state statute unconstitutional without citing a single legal authority in support of its declaration?