Two books are currently on trial in Virginia for obscenity.

In 2022, that sentence should be shocking. Nearly 50 years ago, the Supreme Court set the high constitutional bar that defines obscenity — a narrow, well-defined category of unprotected speech that excludes any work with serious literary, artistic, political, or scientific value. Since then, few if any books have been deemed obscene. And the standards for restraining a bookseller or library’s ability to distribute a book are even more stringent.

Yet, last month, a Virginia resident initiated obscenity proceedings against two acclaimed books: Gender Queer, a Memoir, by Maia Kobabe, an autobiographical graphic novel that depicts the author’s experience as a non-binary and asexual person; and A Court of Mist and Fury, by Sarah J. Maas, a fantasy novel. The obscenity proceedings come amid a nationwide rise in efforts to restrict people’s access to books, and our ability to read, learn, and think for ourselves — but they could be the first to result in a statewide ban on publication or distribution.

Last week, several independent bookstores and a number of national organizations representing book distributors, authors, and libraries filed joint motions urging a Virginia court to dismiss these obscenity proceedings. We represent these distributors alongside the ACLU of Virginia and Michael Bamberger of Dentons, arguing that the case threatens the rights of both young and adult readers — and the First Amendment rights of our clients, as well as other booksellers, distributors, and publishers, to provide access to such materials.

The books at issue here are not obscene by any stretch of the imagination. And the Virginia statute that has enabled these proceedings is unconstitutional.

Under the statute, the court has the authority to temporarily block all sale and distribution of the books anywhere in Virginia upon a mere finding of “probable obscenity.” And, if the court ultimately determines that the books are indeed obscene, anyone who sells or even lends the books in Virginia could face criminal prosecution, regardless of whether they had prior knowledge of the obscenity proceedings. This would impact all independent bookstores and other distributors in the state of Virginia, even if they have no knowledge that a book has been so much as challenged. And it means a court can restrain the distribution of books that are not legally obscene — or, in other words, fully protected speech.

Furthermore, after entry of a temporary restraining order or a final adjudication of a book’s obscenity, the government can presume that anyone who sells, lends, or otherwise distributes the book in Virginia knows it is obscene. In essence, it creates a strict liability regime for selling or lending books that could impact incredibly broad swaths of people, from booksellers to parents to teachers and others.

Finally, because Virginia applies local rather than statewide community standards to determine obscenity, the law could unconstitutionally allow a ban against the circulation of a book that doesn’t even qualify as obscene in the relevant community.

For these reasons, our clients have asked the court to dismiss both proceedings. Any other result would be obscene.

In 2018, Congress passed a law that aimed to address sex trafficking on online platforms. That’s a laudable goal, but the way Congress went about it has led to dangerous and disproportionate online censorship — particularly of the communities the law was trying to protect.

The law, the Allow States and Victims to Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act (FOSTA), hasn’t meaningfully addressed sex trafficking. Instead, it has chilled speech, shut down online spaces, and made sex work more dangerous. Now, courts are poised to interpret it in a way that could make these harms even worse — by imposing liability on online platforms that don’t even know their services are being used for sex trafficking. Along with the Center for Democracy & Technology (CDT), we recently filed three friend-of-the-court briefs on behalf of ourselves, CDT, and a number of LGBTQ+, sex worker, and startup advocacy organizations arguing that courts should not interpret the law in this way, because doing so would incentivize online intermediaries to censor more online speech — especially materials about sex, youth health, LGBTQ+ identity, and other important concerns.

The criminal provisions of FOSTA have already chilled online speech. Those provisions created a carve-out to platform immunity under Section 230 for certain crimes related to sex trafficking. Just as the ACLU warned it would, that carve-out has caused online platforms to remove information that sex workers rely on to keep safe, and to shut down conversations about sex education and sex work, particularly by and for LGBTQ+ people. Instagram, for example, has deleted accounts that post about sex; meanwhile, some niche, free, and queer websites have shut down entirely. Online intermediaries have largely shut down “bad johns” lists compiled by sex workers to identify abusive clients, and many affordable ways to advertise sex work.

This has pushed people in the sex trades, who work in legal, semi-legal, and criminalized industries, off of online platforms and into dangerous and potentially life-threatening scenarios. Some sex workers have had to return to outdoor work or to in-person client-seeking in bars and clubs, where screening is more rushed than it is online, and where workers are more vulnerable to violence, police harassment, and HIV. In one study of FOSTA’s effects on sex workers, researchers found that the law had increased economic instability for roughly 72 percent of the study’s participants, and nearly 34 percent reported an increase of violence from clients.

Against this backdrop of harm, FOSTA has not led to more prosecutions of sex trafficking. Despite the expanded definition of sex crimes under FOSTA, a June 2021 report by the Government Accountability Office showed that federal prosecutors had not used the additional criminal penalties established by FOSTA. At that time — more than three years after the passage of the law — the DOJ had prosecuted only one case using FOSTA. Indeed, it appears FOSTA made it more difficult to gather evidence and prosecute those who use platforms for sex trafficking purposes, in part because platforms relocated overseas.

As if FOSTA hasn’t already caused enough harm, courts are now poised to make things worse by interpreting the law in a way that would open platforms like Twitter, Omegle, craigslist, and Reddit to liability for sex trafficking activities that occur on their services, even if the platforms have no actual knowledge of such activities. If the courts decide that platforms can face liability merely because they “should have known” that sex trafficking was occurring on their websites, many online platforms will inevitably respond by policing their users and taking an even more aggressive approach to content moderation. In particular, they will likely remove and censor more lawful content related to sex and sexual health, including by using blunt automated tools that tend to perpetuate real-world biases and are unable to understand context.

Imposing liability without actual knowledge would not only exacerbate real-world harms, but it would also raise serious First Amendment questions. As the Supreme Court recognized more than 60 years ago, when considering whether to impose liability on booksellers for the contents of the books they sell without requiring some level of knowledge, distributors “will tend to restrict the books [they] sell[] to those [they have] inspected,” and, as a result, “the contents of bookshops and periodical stands . . . might be depleted.” Because online intermediaries — from Google to Twitter to WhatsApp to Amazon Web Services, and other providers who will be governed by the outcome of this case — facilitate the publication and spread of billions of pieces of content every day, this concern is even more serious when it comes to online speech.

We urge the courts to avoid imposing liability on platforms when they do not actually know that particular crimes are occurring on their websites. Doing so will help ensure that all people, especially the LGBTQ+ community, sex workers, and sex health educators, can freely and safely express themselves online.

The Supreme Court recently dealt a blow to federal police accountability in Egbert v. Boule. The case, in which the ACLU filed an amicus brief, centers on Robert Boule, who runs a bed-and-breakfast on the U.S.-Canada border. Boule sued Border Patrol agent Erik Egbert for damages for violating his rights under the First and Fourth Amendments to the U.S. Constitution.

When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave. Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egbert’s supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule.

The court ruled in a 6-3 decision that Boule is not entitled to seek money damages for the harm caused by Egbert’s excessive force and retaliation. For over 50 years, under the Supreme Court’s ruling in Bivens v. Six Unknown Named Agents, people have sought money damages against federal agents for violating their constitutional rights. But the court called Boule’s case a “new context” for Bivens liability and would not allow his claims. While the ruling further limits people’s ability to hold Border Patrol agents accountable in court, and undercuts an important deterrent to misconduct, it did not sanction the agent’s unconstitutional actions or grant agents permission to violate people’s rights in the future.

Credit: AP Photo/Greg Bull

Here are four things you need to know about the ruling:

The court’s decision in no way changes your constitutional rights when interacting with border agents in the border region. While the facts of the case involve Border Patrol’s intrusion of the inn without a warrant, the court’s decision does not sanction those actions.

Border Patrol, and its parent agency Customs and Border Protection (CBP), are bound by constitutional limitations, which prohibit agents from entering your home without a warrant. The Fourth Amendment of the Constitution protects against arbitrary searches and seizures of people and their property, in the border region and beyond. Within 25 miles of the border, as permitted by a separate statute not at issue in this case, Border Patrol is permitted to enter private property, such as your yard or ranch land, without a warrant but is explicitly barred, even that close to the border, from entering a “dwelling,” such as your house, without a warrant.

Border Patrol also remains obligated to respect a broad range of other constitutional rights. For example, a Border Patrol agent cannot lawfully pull you over or otherwise detain you without “reasonable suspicion,” which means the agent must have specific, articulable facts that make it reasonable to believe you committed or are committing a violation of immigration or other federal law, not just a hunch. A Border Patrol agent also cannot search you or your belongings without your voluntary consent, unless they have probable cause, a higher standard requiring a reasonable belief that an immigration violation or crime has occurred. You always have the right to remain silent and say you wish to speak with an attorney.

In other words, your constitutional rights are still intact, even in the border region, but the court’s decision will make it more difficult to hold federal agents accountable when they violate those rights. By further cutting off the ability to seek money damages under Bivens, the court has narrowed the options available to seek justice for border agents’ frequent violations of constitutional protections in the border region.

Much has been made of the 100 mile border zone, but you have the same constitutional rights within the border zone as you do anywhere else in the country. There are only two narrow circumstances in which the Border Patrol is permitted to act outside of normal Fourth Amendment limitations on searches and seizures.

1. Checkpoints: The statute allows for immigration agents within “a reasonable distance from any external boundary of the United States,” to stop and search vessels, trains, aircraft, or other vehicles without a warrant. A “reasonable distance” is defined as 100 air miles from any international boundary. In 1976, the Supreme Court decided in U.S. v Martinez-Fuerte that Border Patrol may operate checkpoints and stop vehicles, without a warrant, for brief questioning of their immigration status even if they have no particularized suspicion of unlawful activity or immigration status. If you are not a U.S. citizen, you must show your visa, permanent resident card, or other immigration paperwork. Border Patrol still needs “probable cause” or consent to search you or your vehicle at a checkpoint.
2. Private property: As previously noted, within 25 miles of the border, the statute permits agents to enter private property but not “dwellings” without a warrant.

Outside of these specific circumstances, all other constitutional protections apply within the border zone, and to individuals who interact with Border Patrol agents. The 100 mile border zone is not a Constitution-free zone.

American Civil Liberties Union

Know Your Rights | 100 Mile Border Zone | ACLU

The ProblemThe Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.

In denying Boule’s Bivens claim, the court argued that the Border Patrol’s non-binding administrative grievance process offered an adequate alternative to money damages for Robert Boule. It does not — as clearly evidenced by the retaliation Boule faced after filing a grievance, and Border Patrol’s decision to keep Egbert on even after finding he acted inappropriately.

We know how frustrating the grievance process is first hand. The ACLU has filed over a dozen administrative complaints since 2020 documenting abuses suffered by hundreds of individuals that went unanswered for months and resulted in few, if any, changes to agency policy. The process, which is not subject to judicial review and has no mechanism for complainants to participate, focuses on disciplining officer misconduct rather than any other individual remedy to complainants.

If administrative oversight mechanisms are to provide any kind of justice, the Department of Homeland Security, CBP’s parent agency, must urgently make several changes. The department should create a uniform process to review and investigate all immigration and border related complaints, including implementing screening procedures for ensuring prompt assignment of a neutral investigator; prompt confirmation of receipt and whether an investigation has been initiated; a requirement that all relevant records (including video and audio files) be turned over to to investigators within 14 calendar days; written resolution of complaints; and appointment of an independent decision maker to impose discipline. The agency then must ensure individuals who they find at fault face meaningful accountability, rather than giving them a pass, as they did with Egbert.

This decision has significant consequences for the victims of abuse by federal law enforcement. It means that people who have been subjected to Border Patrol abuse in the same way as Boule cannot obtain monetary compensation in court, and it may make it more difficult for other victims of abuse by federal law enforcement to bring their claims, as well.

While the ruling is a disappointment, the fight is not over. Congress can, and should, pass legislation to enshrine the right of individuals to sue federal law enforcement officers and receive damages from agents who violate their rights. If it did so, victims of Border Patrol abuse would no longer have to contend with the Egbert ruling, and more broadly, the availability of this important remedy for abuse by federal agents would no longer depend on the willingness of increasingly-hostile courts to allow Bivens cases to go forward.