Virginia Court Rejects Prior Restraint, Says Old Law Used In Attempt To Ban Books Is Unconstitutional
from the your-current-butthurt-is-not-a-time-machine dept
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.
Filed Under: 1st amendment, books, virginia, virginia beach
Comments on “Virginia Court Rejects Prior Restraint, Says Old Law Used In Attempt To Ban Books Is Unconstitutional”
Congressional hopeful
Maybe this should disqualify them running congress. They’ve shown their disdain for the constitution and the first amendment, how can they take an oath to defend it.
I think you’re being a little complacent and triumphalist here.
Don’t you think that’s kind of the point of a lot of this legal action? To fail and rile up their followers by convincing them that there’s something broken and wrong with the laws and the constitution?
And how long will it be before you can no longer rely on the Conservative Supreme Court to take our side with previously-settled issues like this?
Well, if A Song of Ice and Fire with its 214 acts of rape isn’t obscene, I don’t see how A Court of Mist and Fury can be with its mere mentions of sexual violence.
Here's an Idea
I’d wager this Virginia attorney is also a die hard conservative who believes in the free market, no government intervention, and individual liberty above all else – so you know, here is an idea: don’t buy the book if you don’t like the topic, don’t go to Barnes & Noble if you don’t like what they sell, but please let other people use that individual liberty you likely believe in so strongly to decide what content they’d like to read!
Re:
You have to remember that book banning efforts like these are “think of the children” acts—and in such acts, “personal responsibility” takes a backseat to “trying to stop everyone else from reading books I don’t want my kids to read”. They’re about enforcing personal morality upon people who don’t deserve (or want) to have someone else’s morals control their lives.
Re:
That should be a “Die hard conservative” who believes in “a free market”. In quotations those terms are magically transformed, the first to mean a right wing control freak and the second to mean a market entirely free for things that make me money or that support my point of view.
The difference is slight, in the same sense of slight as in the phrase “the Pacific Ocean is a slightly big puddle”.
Nice to see some good sense from our legal system for a change.
Ever notice now...
Ever notice how the people who want to ban books, or restrict speech, or heavily moderate online postings “for the good of the public” and “to let parents decide” always want to make those decisions themselves? They don’t trust “the public”, or eve “the parents” to make the decisions, whatever they say. Just more of the epidemic of hypocrisy.
'Look at us Doing Something! You should vote for us!'
It’s a good result to be sure, both in squashing this attempt and making future attempts more difficult, but…
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.
I can’t help but think that you might be underestimating them and that they knew full well that any judge who wasn’t of a mindset that the constitution is optional would toss the bill and they filed it for that exact reason.
‘Look, the lib judges have it out for your children and the only way to fix that is to keep/put people like us in power so that we can ensure that your children will never see anything you don’t want them to even if you can’t be bothered to be a parent!’
Something I just noticed: In the YouTube clip in the article, Walter is wrong in his claim of prior restraint and The Dude is correct that the waitress asking Walter not to shout swears in the diner “is not a First Amendment thing.” Just sayin’.
“If you’re afraid that reading a book might change someone’s thinking, then you’re not afraid of books – you’re afraid of thinking.”
I hope they also sue the hell out of the fair for not respecting the girl’s legal right to back out of a contract.
Frigging monsters…
Re:
Sorry, I had multiple tabs open and posted this on the wrong story. Please delete this.
Obscene law
Obscenity laws are obscene on their own.
The thought that anyone has the right to force their view on someone else is beyond a violation of freedom.
Re:
Comments like these remind me that nothing in the Bible, including the Ten Commandments, says anything like this:
Those are the third and fourth fundamental tenets of The Satanic Temple, by the by.
The vast majority of users here aren’t interested in moving anywhere. Thanks though
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