Tuesday marked a victory for Maia Kobabe and er graphic novel Gender Queer as a Virginia judge dismissed a lawsuit against it. The case that targeted both Gender Queer and A Court of Mist and Fury by Sarah J. Maas would have labeled both books obscene.
Interim Director Jeff Trexler, as a Comic Book Legal Defense Fund initiate, was co-counsel on the case with Steven Emmert representing Kobabe. Later Tuesday evening, Trexler took to Twitter and posted a brief explainer of the case and why it was dismissed. Below is the entire thread, complete with links.
We couldn’t do the work we do without you. Thank you to the comics community for all your support.
Thanks for all the good words today – and again, thanks to everyone for all of your help and support. As some of you know, my work w/ comics started with legal explainers of cases in the news, so here’s one on today’s Gender Queer ruling. /jt
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Here’s a copy of today’s ruling in the Gender Queer obscenity case in Virginia Beach – our Scribd page also includes our filings to date. https://t.co/4Lt2SFCqxF
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
The first matter – school distribution – was handled quickly – the petitioner withdrew the public school case because the local school district named in the complaint had withdrawn the books.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Here’s a different link to today’s ruling: https://t.co/NDDJzLutII. Scribd deleted the previous upload – ironically, case material is being deleted as obscene on certain platforms, a prime example of why we’ve been holding panels on algorithmic censorship!
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Normally an obscenity statute works the way you’d expect a criminal statute to work: a person produces, possesses, distributes, etc. certain material, gets arrested on obscenity charges, gets convicted or found not guilty.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
When that happens, the judge can issue an order to show cause that the book is not obscene & can also issue a temporary restraining order against the sale or distribution of the book!
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Barnes & Noble, the Gender Queer author/publisher legal teams, and the author & publisher of another book against which a petition was filed – The Court of Mist and Fury – all filed motions to dismiss, which led to extensive briefing and to today’s hearing.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
There were three issues shared by B&N, Gender Queer, and CoMaF: (1) subject matter jurisdiction, (2) defective pleading, and (3) constitutional defects in Section 384.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
In 1968 the Supreme Court held that material might be found obscene as to children but not as to adults – stores could display such material in ways that children couldn’t see or access (i.e., upper shelves, behind the counter). https://t.co/DxykZorlhP
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Unlike § 384, the VA law section 391 re material obscene as to children does *not* allow any citizen to bring a case, nor does it provide for a TRO or state that if a book is found obscene, anyone selling/distributing it is presumed to have done so knowing it was obscene.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
The next argument concerned defective pleading. For a book to be found obscene, under VA law and the Supreme Court’s Miller test it has to meet the following criteria. Note in particular “considered as a whole” – this is crucial. pic.twitter.com/zRMAyJIobc
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
The petitioner expressly called on the court to disregard the requirement to assess the book as a whole, arguing that times had changed – never before in history was there a comic or graphic novel with such sexual imagery as can be found in Gender Queer!
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
The court found that the pleading was defective – it did not properly allege & present supporting facts re appealing to prurient interest, being patently offensive, and not having serious literary, artistic, political, or scientific significance.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
… and it ruled in paragraphs 2-3 that the pleading was defective. https://t.co/5O9VlFc3wW
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
The presumption created under § 384 that anyone would have knowledge (scienter) of having sold obscene material – a required element for an obscenity conviction – was ruled to a violation of due process.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
As a result, the court found § 384 to be unconstitutional on its face. So, with the statute unconstitutional, the petition defectively drafted, and the VA law re material obscene as to matters not giving the court jurisdiction to hear a case brought by an offended citizen …
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
What could happen next? An appeal to the VA Court of Appeals is one obvious possibility.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
Another point to clarify: although the court found that statute inapplicable + unconstitutional and the petition inadequate to show that the book is obscene, the court did not issue a definitive ruling that the book is not obscene.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
So there’s still a lot of work to be done, both here and in opposing challenges throughout the U.S.
— Comic Book Legal Defense Fund (@CBLDF) August 30, 2022
CBLDF and its partners have been battling ongoing and organized attempts to censor comics and other books in schools and libraries. You can join the struggle by making a donation or reporting censorship today!