A court in Virginia has thrown out a lawsuit which tried to make it illegal to sell or lend two popular LGBTQ-themed books to minors in the state.
The lawsuit—which was brought against book chain Barnes & Noble by state delegate Tim Arnold on behalf of Republican Congressional candidate Tommy Altman—tried to use the state’s ancient “obscenity” laws to have the books restricted or removed from stores and library shelves. While book bans have become frighteningly common in schools and public libraries, the West Virginia lawsuit is notable because it tried to criminalize the books entirely, making it illegal to sell or loan them within the state.
The books in question are two of the most banned books in the U.S.: Gender Queer: A Memoir, by Maia Kobabe; and A Court of Mist and Fury, by Sarah J. Maas. Both contain LGBTQ themes and depictions of sex, which has raised the objections from conservative and far-right groups.
But Judge Pamela Baskervill, who had previously allowed the book challenge to proceed, ruled that the obscenity law the plaintiffs utilized in the case was unconstitutional. Under the arcane Virginia law, individuals are allowed to bring lawsuits against books themselves, compelling judges to rule on whether the titles are “obscene.” If that label sticks in court, any sale, lending, or borrowing of the books in question can become a criminal offense.
In other words, the textbook definition of censorship.
“When you’re asking a court to make a ruling in criminal law that has the result of restricting the sale of a book—that’s censorship,” said Bob Corn-Revere, the attorney representing Barnes & Noble, at the court hearing on Tuesday.
While the court didn’t make any determinations about the content of the books themselves, Baskervill dismissed the lawsuit for its use of the obscenity law, saying the statute is “facially invalid” and “unconstitutional on its face in that it authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia.”
Lawyers, nonprofits, and civil rights groups who argued in defense of the books called the decision a victory for First Amendment rights and condemned attempts to restrict the sale of books to LGBTQ youth, but cautioned that it won’t be the last time the books are challenged.
“The First Amendment protects literary expression, even when some people find portions of the works difficult or objectionable,” said Matt Calahan, a senior staff attorney for the ACLU of Virginia, in a statement emailed to Motherboard. “All people should be able to choose what they wish to read.”
Still, it’s unlikely the court’s decision will deter Arnold and Altman from appealing and pursuing the case further. Other LGBTQ titles have also faced challenges at schools and public libraries around the country, and their presence on shelves has inspired a reactionary backlash against LGBTQ book displays and events in libraries, as well as attacks against librarians themselves.