Virginia Court Rejects Prior Restraint, Says Old Law Used In Attempt To Ban Books Is Unconstitutional
Virginia Attorney, Congressional Hopeful File Doomed Lawsuit Against Barnes & Noble Over Obscene' Books
But I'm not here to pat myself on the back. Anyone (well, anyone other than the people filing the lawsuit) could have seen this coming. It really doesn't take more than a mere acquaintance with the First Amendment to understand how the Constitution would prevent the government from deciding what books a private company can or can't sell.
Nonetheless, these buffoons insisted their case should be heard. It was. In the end, they remain on the wrong side of history. Better yet, the decades-old law that hasn't been enforced in years has been declared unconstitutional, which means a second attempt by Virginia politicians to ban books (using the same law) is similarly doomed.
Here's the summary from the ACLU, which helped challenged the attempted book banning.
The Circuit Court for the City of Virginia Beach rejected two petitions arguing that Gender Queer by Maia Kobabe and A Court of Mist and Fury by Sarah J. K. Maas are obscene by holding that the statute pursuant to which the petitions were filed violated First Amendment free speech rights and the constitutional right to due process. Likewise, the Circuit Court vacated a lower court determination of probable cause for obscenity.
The decision [PDF] is short and deals mainly with procedural issues the book banners can't surmount. The court also points out the facts alleged by the censorial plaintiffs aren't enough to declare the targeted books obscene.
But here's the part that really matters. The law being used to ban books is declared unconstitutional by the court.
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.
Virginia Code 18.2-384 is unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.
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.
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.
In other words, The Big Lebowski."
If the law is unconstitutional (and it has been declared such by this court), the other attempts being made to ban books certain legislators don't like are similarly doomed to fail.
Since the plaintiffs can't make a case for actual obscenity, the burden falls where it should: on those purchasing the books. They're allowed to decide for themselves (or for their children) what they can and cannot read. The false pretense of de facto obscenity presented by the plaintiffs fails and takes the law down with it. Virginia is now a bit freer, and personal responsibility is the operative term. Parents can decide what their kids read (this was a for the children" case) and the government has no business telling them they can't.