from the book-burning-but-for-lawyers dept
Civil asset forfeiture has shown us the government has a weird way of instigating lawsuits. In rem forfeiture cases allow government agencies to file suits against objects, rather than the people they’ve been seized from. This leads to some very amusing case names (even if the underlying process verges on legalized theft), like South Dakota v. 15 Impounded Cats and, um… UNITED STATES of America v. AN ARTICLE of hazardous substance CONSISTING OF 50,000 cardboard BOXES more or less, each containing one pair OF CLACKER BALLS, labeled in part: (Box) “* * * Kbonger * * It’s Fun Test Your Skill It Bounces It Flips Count The Hits * * * Specialty Mfg. Co., Seattle, Wash. * *.
A state law in Virginia allows residents to sue things rather than people. That’s what a couple of ridiculous politicians (Delegate Timothy Anderson and congressional candidate Tommy Altman) have done. Their legal action targets two books — “Gender Queer” by Maia Kobabe and “A Court of Mist and Fury” by Sarah J. Mass — in hopes of securing a ruling declaring the books “legally obscene,” thereby prohibiting them from being distributed by the state’s public schools (either by instructors in classes or via school libraries).
“Gender Queer” offends these Republican politicians for reasons that can probably be inferred from the title. “A Court of Mist and Fury” is a bit trickier. For whatever reason, the pair of pols believe depictions of physical and sexual abuse are de facto obscene. And, for whatever reason, the two scored an early win in court, with a preliminary ruling stating enough evidence of potential obscenity had been alleged that the case could move forward.
Now, FIRE (Foundation for Individual Rights and Expression) has stepped in to ask the court to find the First Amendment far outweighs the overstated (and politically expedient) arguments of these two Virginia politicians.
In today’s brief, FIRE and the Woodhull Freedom Foundation argue that neither book comes close to constituting obscenity as defined for minors under longstanding state and federal precedent. The books “will not appeal to or have value to every audience,” we recognize, but the First Amendment only requires that the books have “value to an audience” — and both plainly do.
The brief [PDF] points out the best arbiters of individual taste are (duh) individuals. Long-recognized rights give parents and readers the option to read what they want. A broadly interpreted obscenity statute — especially when attached to a bizarre law that allows people to sue books — allows the government to decide what people should be allowed to read. That decision isn’t the government’s to make.
Some readers will choose not to purchase or read the books at issue in this case. Some retailers and some librarians will decline to place them on the shelves. Our Constitution reserves these choices for individuals and forbids them from the state. In our pluralist democracy, the First Amendment prescribes a remedy for audiences offended by protected speech: those who seek to avoid “bombardment of their sensibilities” may do so “simply by averting their eyes.” Cohen v. California, 403 U.S. 15, 21 (1971). Declaring books obscene because they include discussions or depictions of sex would reprise a discredited era of censorship repudiated by decades of Supreme Court precedent.
If the court continues to entertain the bullshit arguments of easily offended politicians, it’s going to aid and abet all sorts of censorship — not just in Virginia, but anywhere else opportunists see an opportunity to use someone else’s ill-gotten courtroom gains as leverage to foist their mindset on the people they’re supposed to be serving.
Without clarity from this Court, petitioners like the politicians here may prohibit parents from deciding what their children may read. Nor is this authority limited to books. Broad authority to prohibit or criminalize the availability of materials containing references to sexual content would enable the state to incarcerate a parent who allows a teenager to view an R-rated movie or even to access the internet.
Nor would the effects of such an order be limited to this Court’s territorial jurisdiction. Instead, it would embolden and invite further calls for censorship in school districts, libraries, and bookstores across the country—not only of these books, but of any now targeted by ambitious politicians nationwide. The resulting chill will force libraries, bookstores, and publishers unable to bear the cost of litigation to choose the cheapest option: censorship. But state-enforced silence has a cost, too, and it will be borne by groups without the political power to defend speech of interest to their communities—those who most need the First Amendment and courts that will adhere to its narrow limitations.
Chilling effects can’t easily be contained. Slopes become slippery at a moment’s notice. What somehow worked in Virginia will become model legislation for would-be censors around the nation. The way to head this off is to shut down hyper-local efforts like this one with strong affirmations of constitutional rights. Hopefully, the court will come down on the right side of history when it dives deeper into the issues.