Obscenity lawsuit exposed outdated law and society too dependent on government to raise children
Last week, a court in Virginia Beach was asked to find two books depicting lewd sexual activity and ban their sale at a Barnes & Noble store to people under 18.
The the court refusedlargely dodging the question of whether the content was legally obscene and instead deconstructing the state’s anachronistic 1950 obscenity law under which the complaint was filed.
To be clear, this was litigation undertaken in preparation for election year politics. It was filed by Del. Tim Anderson, a conservative lawyer, on behalf of fellow Republican Tommy Altman. At the time of the filing, Altman was running in the GOP’s 2nd congressional district primary, attempting to run to the right of State Sen. Jennifer Kiggans, the eventual nominee.
The complaint sought that the court declare “Gender Queer” and “A Court of Mist and Fury” obscene and prohibit their sale to minors unless they have parental consent. Had the court found in favor of Altman, any subsequent sale of either book or even their loan from person to person anywhere in the Commonwealth could have exposed the seller or lender to criminal penalties, supports the ACLU.
“Gender Queer” may ring a bell. Maia Kobabe’s graphic novel memoir was published in a comic book-like format with illustrations depicting sexual contact, masturbation, using a sex toy, and, according to the Washington Postan erotic scene of a man and a boy on what appears to be a Greek urn.
The book has become the most contested of 2021, based on a American Library Association survey which tracked 729 hardware and service challenges for libraries, schools and universities.
In Virginia, it generated heated debates at school board meetings, notably in Loudoun County but also in other localities, when outraged parents demanded the removal of the book from school libraries. Republican Glenn Youngkin’s successful gubernatorial campaign seized on the issue, and it gained traction, especially in Democratic-voting suburbs, as he championed the rights of parents.
In a way, Anderson and Altman built on Youngkin’s success a year ago with litigation, saying their lawsuit was intended to give parents control over what their underage children can buy. Parental prerogatives create powerful and resonant politics, like former Governor Terry McAuliffe learned the hard way after a televised debate with Youngkin.
But attempting to use a flawed and outdated law that Trial Judge Pamela Baskervill said would allow the government to exercise an unconstitutional prior restraint against speech or expression is not the right way to do it. The retired lawyer, chairman of the Virginia Beach judges who recused himself because of a lawmaker’s involvement in a state where lawmakers appoint judges, also found the law unenforceable because it could criminalize people who sell or even lend books unaware that a judge in a locality hundreds of miles away had ruled over the obscene material.
In comments to reporters after Tuesday’s hearing, Anderson and Altman pondered the possibility of appealing the decision to the Virginia Court of Appeals.
In support of the intent, the men note the existence of age-based restrictions such as those that apply to admission to cinemas and argue that similar systems should apply to books. Anderson said he is considering legislation for next winter’s General Assembly session that would establish such a system in state law.
The classification of films, however, is not imposed by law. They’re voluntary, a regime established in 1968 by the Motion Picture Association of America that rates films for children and teens for suitability and rates them accordingly on a scale ranging from G, for all audiences, to NC-17, prohibited to all. under 17 years old. No one is at risk of being arrested, brought to justice or imprisoned if a 16 year old watches an NC-17 movie.
But even arguing in 2022 over archaic constructions from the last third of the previous century is a fool’s errand – a doomed approach to withholding oceans of digital content that children are far more adept at accessing than their parents. And much of what resides online is more harmful than any book ever placed on the shelves of a library or bookstore.
It is also baffling to understand why efforts to restrict expression focus so obsessively on sexuality, especially LGBTQ issues, with far less regard for gratuitous and distorting violence, including interactive bloodthirsty fantasies and immersive and hands-on kits for building bombs and guns. A creative kid with a credit card number can access a gambling portal and squander untold amounts of money in seconds. All of these arguably have more potential for ruin than words or illustrations that explore his sexual awakening.
Sure, there are safeguards to deter kids from abusing online sites they don’t have to visit, and some of them have real teeth, but any kid worth their salt can easily defeat them if left to their own devices without parental supervision.
Ah! There is still this word that Anderson, Altman, Youngkin and other Republicans have used politically with more or less success: “parental”. And credit them: they rightly pointed out to the political world how essential and difficult parenthood is.
My two sons are adults and have long since ventured out on their own. The eldest has a child, and I worry about the world in which he and my daughter-in-law must raise him. The job they have is much more difficult than it was when my sons were children, with many threats today unfathomable at the time. But sexual content – some of which is explicit, even obscene – is not one of those threats; it was even before my distant childhood.
As unfair as it may seem, these increased risks and the hard work to neutralize or minimize them fall first on parents. But it is also up to society and our communities to better support and empower them. The most effective solutions are the least expensive and least intrusive, and they don’t need to involve the government – three virtues that should gladden the heart of any conservative.
Communities owe it to young families to watch themselves for situations that compromise children’s safety and call for usually bad actors. Neighborhoods – and neighbors – they owe it to them to be connected, attentive and attentive to each other and to all the children around them.
These concepts work, or at least they did in a simpler, less torn America. The term “it takes a village” existed for centuries before Hillary Clinton seized upon it as the title of her 1996 book. The “village” approach has accomplished far more than the heavy hand of government could never do it.
I don’t know if such villages are possible in the collection of quarrelsome tribes that our culture has transformed over the past decade. It’s a shame because it leaves only inflexible legislation, exorbitant appropriations and even more divisive litigation as a sorry substitute.
But as poor as the legislation and litigation are, it’s easier for guys like Anderson to tout the 2023 re-election campaign than a genuine — however chimerical — appeal to the greater good and the better angels of our nature. .
Get morning headlines delivered to your inbox