Virginia Legal Action Threatens the Freedom to Read
On May 18, 2022, in a legal action that threatens the free speech rights of all Virginians, a Virginia congressional candidate, represented by a Virginia delegate, sought and obtained an order finding probable cause, based on limited, one-sided evidence, that two well-received, well-reviewed books, Gender Queer and A Court of Mist and Fury, might be “obscene for unrestricted viewing by minors.” Initiated under an obscure state law that allows any Virginia citizen to file a complaint against any book sold in the state, the order obtained by the Virginia delegate asks the authors and publishers of the books to present evidence that the books are not obscene so that the judge can make a final decision regarding whether the books may be legally sold in Virginia.
This legal action could profoundly limit the availability of books in the Commonwealth of Virginia. No book has been banned for obscenity in the United States in more than 50 years. Prohibiting the sale of books is a form of censorship that cannot be tolerated under the First Amendment.
The Supreme Court has established a narrow test for obscenity that requires that the text as a whole, even if it references sex or nudity, lack serious literary, artistic, political or scientific value. Neither of the books challenged in these cases comes remotely close to meeting the Supreme Court’s long-established criterion for a finding of obscenity.
Gender Queer is a multi-award winning coming of age story that clearly has serious literary value. School review committees across the country composed of teachers, parents, students and librarians have upheld its value for adolescent readers, and it is available in many school and public libraries. Many of those committees have explicitly found that the book’s few sexual references are not erotic, but instead are meant to inform the reader about the main character’s struggles with eir identity and coming of age, struggles which are obviously of great interest and value to adolescents. In fact, school districts ranging from Maryland’s Howard County to Kentucky’s Jefferson County have put Gender Queer on “recommended” or “great” lists for high school students. It won the 2021 Iowa High School Battle of the Books. The School Library Journal called it “a great resource for those who identify as nonbinary or asexual as well as for those who know someone who identifies that way and wish to better understand.” Contrary to well-settled United States Supreme Court precedent and Virginia law, suggestions that a few depictions of sexual experience render the entire, 240-page book obscene are, quite simply, false.
A Court of Mist and Fury is also a widely praised work with serious literary and artistic value. Booklist, School Library Journal, Publishers Weekly, Kirkus Reviews and USA Today gave it strongly positive reviews, calling it a worthy addition to its popular fantasy genre and praising it for its portrayals of mental health struggles, female empowerment, and the dynamics of romantic relationships. A bestselling novel that has appeared on the New York Times bestseller list 15 times, A Court of Mist and Fury was also chosen as a Goodreads Choice winner. Readers on Goodreads.com overwhelmingly rate it highly; out of more than 700,000 reviews, more than 90 per cent of the reviewers give it four or more stars.
Those who care about individual liberties and the freedom to read should understand precisely what the law requires, should the petitioners succeed: the law in question will make it illegal for any bookstore to sell these books in Virginia. This petition aims to prevent readers from making a personal choice to read these books at all. The petitioners’ subsequent statements to the press make it clear that they intend to use this action as a means to criminally prosecute librarians, booksellers, and publishers.
Over the years, many people have tried to ban books by claiming that they are obscene. If persons like the petitioners obtain similar orders every time they have objections to a book, it will chill the freedom to read and stifle the voices of authors and publishers. Librarians, educators, authors, publishers, and booksellers will be targeted for making available books that everyone has the right to choose to read.
The undersigned organizations strongly urge Virginians–and all Americans–to stand against any attempt to use government action to dictate what we can read and how to think about what we read. Prohibiting the sale and distribution of books is an affront to our democratic values and threatens each person’s and each family’s individual liberties. It is contrary to our principles of democracy to allow anyone, regardless of their beliefs or political position, to determine what other Americans can read.
ACLU of Virginia
American Booksellers for Free Expression
American Library Association
Association of American Publishers
Barnes & Noble Booksellers
Comic Book Legal Defense Fund
Freedom to Read Foundation
National Coalition Against Censorship
National Council of Teachers of English
Virginia Association of School Librarians
Virginia Association of Teachers of English
Virginia Library Association