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Virginia Beach court dismisses delegate's lawsuit against 2 books said to be 'obscene'

The judge laid out six reasons that the lawsuit could have been dismissed. She also said this it couldn't be amended and re-submitted because that "would be futile."

VIRGINIA BEACH, Va. — A Virginia Beach Circuit Court judge dismissed a lawsuit Tuesday that attempted to stop Barnes & Noble bookstores from selling “obscene” books to children.

Delegate and attorney Tim Anderson filed suit back in May over two books: “Gender Queer” and “A Court of Mist and Fury.” He said both books contain sexual content.  

Judge Pamela Baskervill wrote the dismissal order. She said Virginia law doesn't grant circuit courts authority to determine if a book is obscene to minors, and because of that, the court dismissed the case.

Jeff Trexler, the attorney for Maia Kobabe the author of the book "Gender Queer," said his team is glad the suit was thrown out.

“This is blatantly unconstitutional and I think it’s fundamentally against what we are about as Americans,” Trexler said. “I think to have the government come in and say, 'You cannot show these images, you cannot talk about this subject,' that is what would be obscene."

Anderson filed the lawsuit on behalf of his client Tommy Altman, a conservative running for Congress.

"That’s where we are in this case. Should parents have a say like they do with R-rated movies? Should parents have a say like they do with violent video games, and music?” Anderson said. 

He insisted this isn’t a "book ban." He said it’s about parent choice. 

Robert Corn-Revere, the attorney for Barnes & Noble, saw differently.

“You’re trying to use criminal law to make it a penalty, potentially a crime, to sell books," Corn-Revere said. “When you’re using the law to restrict books, that’s the definition of a book ban.” 

Anderson said he is considering an appeal or possible legislation to introduce a book rating system, like the ones for video games, movies and music.

“I think this is a case where we have to start working our way up the appellate process and asking the court to review the question that we asked the court today, which was: Should there be a different standard of obscenity for children than there is for adults?" Anderson said. “We’re looking at those options. It may not be an appeal. In May, we’re going to look at that. I’m a member of the General Assembly. There’s a possibility I may introduce some legislation to try and fix this.”

Anderson has 30 days to decide whether to file an appeal. He said that gives him and his client time to decide the next step.

“We have movies, video games, music, all have warnings. You can’t sell a R-rated ticket to a child," he said. "But books, there’s nothing - it’s the Wild West.”

Meanwhile, Corn-Revere said as far as he's concerned, this case is over.

In her order, Baskervill said the lawsuit didn't present facts that could support a finding that the books are obscene, even as state law defines it.

She continued by saying obscenity claims have to be considered next to the U.S. Constitution and Virginia Constitution, and when taking them into account, Virginia's obscene book law is unconstitutional "on its face" under the First Amendment.

The judge laid out five other reasons that the lawsuit could have been dismissed. She also said this lawsuit couldn't be amended and re-submitted because that "would be futile." 

On his Facebook page, Anderson shared the following statement about the suit:

"Today the Virginia Beach Circuit Court dismissed the obscenity lawsuit finding the Code was unconstitutional under due process, that the Petitioners Request for an obscenity standard for minors was not allowed by precedent and that there was not an adult obscenity standard plead in the petitions. 

Mr. Altman is reviewing his appeal options.  Fundamentally, my client believes there should be a different standard of obscenity for children than currently exists for adults, but that will require review by higher courts to conclusively answer this question and possibly additions to the code by the General Assembly."

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