18.2-384 - Proceeding against book alleged to be obscene. - Virginia Statutes

§ 18.2-384. Proceeding against book alleged to be obscene.

(1) Whenever he has reasonable cause to believe that any person is engaged inthe sale or commercial distribution of any obscene book, any citizen or theattorney for the Commonwealth of any county or city, or city attorney, inwhich the sale or commercial distribution of such book occurs may institute aproceeding in the circuit court in said city or county for adjudication ofthe obscenity of the book.

(2) The proceeding shall be instituted by filing with the court a petition:

(a) Directed against the book by name or description;

(b) Alleging the obscene nature of the book; and

(c) Listing the names and addresses, if known, of the author, publisher, andall other persons interested in its sale or commercial distribution.

(3) Upon the filing of a petition pursuant to this article, the court in termor in vacation shall forthwith examine the book alleged to be obscene. If thecourt find no probable cause to believe the book obscene, the judge thereofshall dismiss the petition; but if the court find probable cause to believethe book obscene, the judge thereof shall issue an order to show cause whythe book should not be adjudicated obscene.

(4) The order to show cause shall be:

(a) Directed against the book by name or description;

(b) Published once a week for two successive weeks in a newspaper of generalcirculation within the county or city in which the proceeding is filed;

(c) If their names and addresses are known, served by registered mail uponthe author, publisher, and all other persons interested in the sale orcommercial distribution of the book; and

(d) Returnable twenty-one days after its service by registered mail or thecommencement of its publication, whichever is later.

(5) When an order to show cause is issued pursuant to this article, and uponfour days' notice to be given to the persons and in the manner prescribed bythe court, the court may issue a temporary restraining order against the saleor distribution of the book alleged to be obscene.

(6) On or before the return date specified in the order to show cause, theauthor, publisher, and any person interested in the sale or commercialdistribution of the book may appear and file an answer. The court may byorder permit any other person to appear and file an answer amicus curiae.

(7) If no one appears and files an answer on or before the return datespecified in the order to show cause, the court, upon being satisfied thatthe book is obscene, shall order the clerk of court to enter judgment thatthe book is obscene, but the court in its discretion may except from itsjudgment a restricted category of persons to whom the book is not obscene.

(8) If an appearance is entered and an answer filed, the court shall orderthe proceeding set on the calendar for a prompt hearing. The court shallconduct the hearing in accordance with the rules of civil procedureapplicable to the trial of cases by the court without a jury. At the hearing,the court shall receive evidence, including the testimony of experts, if suchevidence be offered, pertaining to:

(a) The artistic, literary, medical, scientific, cultural and educationalvalues, if any, of the book considered as a whole;

(b) The degree of public acceptance of the book, or books of similarcharacter, within the county or city in which the proceeding is brought;

(c) The intent of the author and publisher of the book;

(d) The reputation of the author and publisher;

(e) The advertising, promotion, and other circumstances relating to the saleof the book;

(f) The nature of classes of persons, including scholars, scientists, andphysicians, for whom the book may not have prurient appeal, and who may besubject to exception pursuant to subsection (7).

(9) In making a decision on the obscenity of the book, the court shallconsider, among other things, the evidence offered pursuant to subsection(8), if any, and shall make a written determination upon every suchconsideration relied upon in the proceeding in his findings of fact andconclusions of law or in a memorandum accompanying them.

(10) If he finds the book not obscene, the court shall order the clerk ofcourt to enter judgment accordingly. If he finds the book obscene, the courtshall order the clerk of court to enter judgment that the book is obscene,but the court, in its discretion, may except from its judgment a restrictedcategory of persons to whom the book is not obscene.

(11) While a temporary restraining order made pursuant to subsection (5) isin effect, or after the entry of a judgment pursuant to subsection (7), orafter the entry of judgment pursuant to subsection (10), any person whopublishes, sells, rents, lends, transports in intrastate commerce, orcommercially distributes or exhibits the book, or has the book in hispossession with intent to publish, sell, rent, lend, transport in intrastatecommerce, or commercially distribute or exhibit the book, is presumed to haveknowledge that the book is obscene under §§ 18.2-372 through 18.2-378 of thisarticle.

(12) Any party to the proceeding, including the petitioner, may appeal fromthe judgment of the court to the Supreme Court of Virginia, as otherwiseprovided by law.

(13) It is expressly provided that the petition and proceeding authorizedunder this article, relating to books alleged to be obscene, shall beintended only to establish scienter in cases where the establishment of suchscienter is thought to be useful or desirable by the petitioner; and theprovisions of § 18.2-384 shall in nowise be construed to be a necessaryprerequisite to the filing of criminal charges under this article.

(Code 1950, § 18.1-236.3; 1960, c. 233; 1975, cc. 14, 15.)