Virginia Attorney, Congressional Hopeful File Doomed Lawsuit Against Barnes & Noble Over ‘Obscene’ Books

Free Speech

from the professional-moral-panicists dept

Two political figures determined to play to the base no matter what it costs them have filed lawsuits against book retailer Barnes & Noble, claiming (one specific Virginia Beach store, along with a Virginia Beach school) the company is marketing “obscene” books to kids.

It’s all incredibly stupid. Here’s Kelly Jensen with the details for Book Riot.

Last week, Virginia Beach (VA) schools voted to remove Gender Queer from shelves. It came after school board member Victoria Manning complained about it and several other books within the schools. After the initial review of the book and several others, Manning appealed the decision made to keep the book and after reconsideration, the book was pulled.

Now a Virginia lawyer is stepping in to take the decision further: he’s filing a suit against the school and against the Barnes & Noble store in Virginia Beach.

Virginia Beach attorney and State Delegate Tim Anderson, posted on Facebook that he and his client Tommy Altman–a right-wing republican running for Congress in the district housing Virginia Beach–saw the Virginia Beach Circuit Court find “probable cause that the books Gender Queer and A Court of Mist and Fury are obscene to unrestricted viewing by minors.”

Altman (the congressional hopeful) is apparently “directing” this litigation. Tim Anderson (who may have a serious conflict of interest problem given his position as a State Delegate [the state equivalent to a Congressperson]) seems more than willing to take the First Amendment for a ride through the state’s court system, apparently hoping to define “obscenity” in a way no court at any level has defined obscenity in the past.

Anderson, who should definitely know better, is presenting some standard procedural efforts as a “victory” for people like him and his client, who somehow believe they can be the final arbiters of published obscenity.

Anderson’s Facebook post prematurely declares victory.

I am pleased to announce a major legal victory.

Today, the Virginia Beach Circuit Court has found probable cause that the books Gender Queer and a Court of Mist and Fury are obscene to unrestricted viewing by minors.

My client, Tommy Altman, has now directed my office to seek a restraining order against Barnes and Noble and Virginia Beach Schools to enjoin them from selling or loaning these books to minors without parent consent.

But that’s not what the documents posted by Anderson show. Those documents [embedded below] are nothing more than the court inviting the sued parties to present their arguments against Anderson’s and Altman’s ridiculous “obscenity” accusations.

What Anderson has posted is two Orders to Show Cause. These direct the sued parties to respond within 21 days of notice. While the Orders state that the court has found “probable cause” that the books are “obscene for unrestricted viewing by minors,” this determination means very little until the court has reviewed the arguments of those being sued.

Literally anything can be called “probable cause” when it comes to court actions. That’s how prosecutors are able to get prosecutions initiated. They present one side of the case and the court determines whether those accusations — entirely divorced from any counterarguments or motions by the defense — is enough to proceed with fact-finding. That’s what is happening here and it very definitely isn’t the “victory” Anderson claims it is. Further fact finding may determine those initiating the action are full of shit. Declaring victory before the accused has even had a chance to respond is the height of disingenuousness.

As the Virginia Beach court dockets show (as of May 22, 2022 — see below), the only action happening right now has been generated by the agitators who seem to believe they’ll be able to sidestep the First Amendment to prevent a private company from offering certain books for sale. They seem to believe the same thing about the Virginia school targeted in this action, but that’s another set of standards completely — one that involves government-on-government action and is a bit more complicated than the virtually ensured loss heading their way in terms of what Barnes & Noble can stock in its stores.

The two Republican politicians are asking for a restraining order, which is the logical move to make. But most of this will remain on hold until the defendants have a chance to respond. Unless the judge is smoking the same partisan crack the plaintiffs are, the TRO requests will remain on ice until after the show cause orders are fulfilled.

It’s unclear whether this court was chosen for its unwillingness to respect the First Amendment or just because it was conveniently located. If this court rules in the plaintiffs’ favor and grants a restraining order, it will have to step over the still-cooling corpse of the First Amendment to do so. There’s nothing in these books that even approaches the standard for obscenity. And there’s a good chance these two agitators know it. Even if they lose, they win. They’ll be able to present their lawsuit dismissals as evidence the entire system is corrupt. It’s (almost) free advertising, especially when so many mainstream outlets are willing to present their allegations (while using the plaintiffs’ loaded language) without pointing out the extreme unlikelihood of their success.

Even if they win at this level, they’ll still lose. The First Amendment protects a vast amount of speech and nothing singled out by this pair of hatemongers even approaches the lowest of precedential bars erected by courts in this country.

Filed Under: 1st amendment, a court of mist and fury, book burning, books, culture war, free speech, gender queer, obscenity, tim anderson, tommy altman, virginia beach
Companies: barnes & noble