                                 CODE OF VIRGINIA

PROCEEDING AGAINST BOOK ALLEGED TO BE OBSCENE (§ 18.2-384)

A. Whenever he has reasonable cause to believe that any person is engaged in the
sale or commercial distribution of any obscene book, any citizen or the attorney
for the Commonwealth of any county or city, or city attorney, in which the sale
or commercial distribution of such book occurs may institute a proceeding in the
circuit court in said city or county for adjudication of the obscenity of the
book.

B. The proceeding shall be instituted by filing with the court a petition:

   1. Directed against the book by name or description;

   2. Alleging the obscene nature of the book; and

   3. Listing the names and addresses, if known, of the author, publisher, and
   all other persons interested in its sale or commercial distribution.

C. Upon the filing of a petition pursuant to this article, the court in term or
in vacation shall forthwith examine the book alleged to be obscene. If the court
find no probable cause to believe the book obscene, the judge thereof shall
dismiss the petition; but if the court find probable cause to believe the book
obscene, the judge thereof shall issue an order to show cause why the book
should not be adjudicated obscene.

D. The order to show cause shall be:

   1. Directed against the book by name or description;

   2. Published once a week for two successive weeks in a newspaper of general
   circulation within the county or city in which the proceeding is filed;

   3. If their names and addresses are known, served by registered mail upon the
   author, publisher, and all other persons interested in the sale or commercial
   distribution of the book; and

   4. Returnable 21 days after its service by registered mail or the commencement
   of its publication, whichever is later.

E. When an order to show cause is issued pursuant to this article, and upon four
days&#8217; notice to be given to the persons and in the manner prescribed by
the court, the court may issue a temporary restraining order against the sale or
distribution of the book alleged to be obscene.

F. On or before the return date specified in the order to show cause, the
author, publisher, and any person interested in the sale or commercial
distribution of the book may appear and file an answer. The court may by order
permit any other person to appear and file an answer amicus curiae.

G. If no one appears and files an answer on or before the return date specified
in the order to show cause, the court, upon being satisfied that the book is
obscene, shall 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
restricted category of persons to whom the book is not obscene.

H. If an appearance is entered and an answer filed, the court shall order the
proceeding set on the calendar for a prompt hearing. The court shall conduct the
hearing in accordance with the rules of civil procedure applicable 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 such evidence be offered,
pertaining to:

   1. The artistic, literary, medical, scientific, cultural and educational
   values, if any, of the book considered as a whole;

   2. The degree of public acceptance of the book, or books of similar character,
   within the county or city in which the proceeding is brought;

   3. The intent of the author and publisher of the book;

   4. The reputation of the author and publisher;

   5. The advertising, promotion, and other circumstances relating to the sale of
   the book;

   6. The nature of classes of persons, including scholars, scientists, and
   physicians, for whom the book may not have prurient appeal, and who may be
   subject to exception pursuant to subsection G.

I. In making a decision on the obscenity of the book, the court shall consider,
among other things, the evidence offered pursuant to subsection H, if any, and
shall make a written determination upon every such consideration relied upon in
the proceeding in his findings of fact and conclusions of law or in a memorandum
accompanying them.

J. If he finds the book not obscene, the court shall order the clerk of court to
enter judgment accordingly. If he finds the book obscene, the court shall 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 restricted category of persons to
whom the book is not obscene.

K. While a temporary restraining order made pursuant to subsection E is in
effect, or after the entry of a judgment pursuant to subsection G, or after the
entry of judgment pursuant to subsection J, any person who publishes, sells,
rents, lends, transports in intrastate commerce, or commercially distributes or
exhibits the book, or has the book in his possession with intent to publish,
sell, rent, lend, transport in intrastate commerce, or commercially distribute
or exhibit the book, is presumed to have knowledge that the book is obscene
under &#xA7;&#xA7; 18.2-372 through 18.2-378 of this article.

L. Any party to the proceeding, including the petitioner, may appeal from the
judgment of the court to the Court of Appeals, as otherwise provided by law.

M. It is expressly provided that the petition and proceeding authorized under
this article, relating to books alleged to be obscene, shall be intended only to
establish scienter in cases where the establishment of such scienter is thought
to be useful or desirable by the petitioner; and the provisions of &#xA7;
18.2-384 shall in nowise be construed to be a necessary prerequisite to the
filing of criminal charges under this article.

HISTORY: Code 1950, § 18.1-236.3; 1960, c. 233; 1975, cc. 14, 15; 2021, Sp.
Sess. I, c. 489.