#

## § 18.2-384 – Proceeding against book alleged to be obscene

##

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’ 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 §§ 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 § 18.2-384 shall in nowise be construed to be a necessary prerequisite to the filing of criminal charges under this article.