In Re: A Court of Mist and Fury, In Re: Gender Queer

Summary

On August 30, 2022, Judge Pamela S. Baskervill held oral arguments on the motions to dismiss and other dispositive motions. After the arguments, she issued a ruling from the bench in favor of the authors and publishers of A Court of Mist and Fury and Gender Queer, Barnes and Noble, four Virginia booksellers, American Booksellers Association, Authors Guild, Association of American Publishers, Freedom to Read Foundation, American Library Association, and Virginia Library Association.

The judge held the law unconstitutional for violating the First Amendment and due process provisions of the U.S. Constitution as a prior restraint, for insufficient knowledge requirement, and for insufficient notice. The order also found that plaintiff Tommy Altman did not allege facts sufficient to establish that the books are obscene and held that the court did not have the authority to grant the relief being sought by Mr. Altman.

Judge Baskervill also vacated her earlier order to show cause that there was a probable cause that the books were obscene, because the ruling was made in an ex parte proceeding without the benefit of full briefing, so the ruling was granted on an incomplete record.

On May 18, in an ex parte procedure, Judge Baskervill issued an order to show cause that the books A Court of Mist and Fury and Gender Queer were obscene, but limited the order so that it only applied to the books being obscene as to minors. Judge Baskervill is a retired judge, sitting by designation of the Virginia Supreme Court. All other judges in the Virginia Beach Circuit recused themselves.

Mr. Altman subsequently filed a motion requesting temporary restraining orders, again only as to minors, and served notice to authors and publishers of the books, Barnes and Noble, and the local library board because they were named in the TRO.

Background

The cases were brought under an old Virginia law that allows any citizen to bring a civil case against a book, seeking a judicial ruling that the book is obscene. Since the case is brought against the books, there is no party to the case who is deemed to be the defendant. The publisher(s) and author(s) of the books must be notified of the proceeding if possible, but they are not obligated to defend the book(s). Instead, the law allows any party with an interest in the “sale or commercial distribution” of the books in Virginia to seek leave of the court to participate as an “amicus curie” but this is the equivalent of an intervenor.

On June 22, 2022, the publishers, the authors, and a group of book community organizations, including American Booksellers for Free Expression, American Library Association, Association of American Publishers, Authors Guild, Freedom to Read Foundation, Virginia Library Association, Prince Books, READ Books, One More Page Books, and bbgb tales for kids bookstore filed motions to vacate the order to show cause and to dismiss the petition filed by Mr. Altman. The bookseller and book organizations were represented by Media Coalition’s general counsel.

Judge Baskervill issued a scheduling order that briefs in support for the motions to dismiss would be due July 26.

On July 26, the groups defending the books against the claims that they are obscene filed briefs in support of their motions to dismiss. The brief of the booksellers and other book organizations made three main arguments:

• The case should be dismissed because the plaintiff is seeking an unconstitutional prior restraint.
• The law violates due process protections because it binds booksellers, publishers, and authors, who are not parties to the case.
• The law is unconstitutionally vague because the law does not follow the definition of obscene as required by the Supreme Court.

On August 5, the plaintiff responded to the book parties briefs in support of their motions to dismiss.

On August 16, the book parties filed a response to plaintiff’s filing of August 8.