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Update: New obscene materials law struck down

Michael W. Hoskins
January 1, 2008
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On the day it was supposed to take effect, an Indianapolis federal judge struck down in its entirety a new law that would have required bookstores, retailers, and others to register with the state and pay a fee to sell any sexually explicit material.

U.S. District Judge Sarah Evans Barker issued a ruling Tuesday in Big Hat Books, et al. v. Prosecutors, No. 1:08-CV-00596, which challenged the constitutionality of House Enrolled Act 1042 passed earlier this year by the Indiana General Assembly. The statute would have required any person or organization - including all employees - wanting to sell literature or other material deemed harmful to minors under Indiana law to register with the Secretary of State and pay a $250 filing fee.

In her 31-page ruling, Judge Barker ruled that the new law is unconstitutionally vague and overbroad, and a violation of the First Amendment.

"A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale - all incidents of unquestionably lawful, nonobscene, nonpornographic materials being sold to adults - would appear to necessitate registration under the statute," she wrote. "Such a broad reach is, without question, constitutionally disproportionate to the stated aim of the statute to provide a community 'heads up' upon the opening of 'adult bookstore-type businesses.'"

The American Civil Liberties Union of Indiana filed the suit May 7, and plaintiffs included the Indianapolis Museum of Art, booksellers, and publishing organizations. They worried that any material they sell - books, music, art, photos - that is considered sexually explicit under Indiana statute would require them to register with the state if they relocate even if the material isn't intended for the sale to or use by minors, or if they hire a new employee after June 30. The plaintiffs claimed that having to register would label the businesses and organizations as purveyors of sexually explicit material and harm their reputation.

Judge Barker determined the new law wasn't narrowly tailored, is clearly content-based, and the $250 fee is itself a "punitive measure." She also wrote that the law is vague because it doesn't give adequate guidance to those who'd have to enforce or follow the statute.

"Defendants have sidestepped entirely the issue of whether such a statement (detailing the materials for sale) needs to be updated as inventories change; clearly the statute provides no guidance on this point," she wrote. "There can be no doubt that compliance with such a vague mandate will be unduly burdensome, will have a chilling effect on expression, and will fail to provide ordinary people with a reasonable degree of notice as to the law's requirements; the Constitution demands no less."

While plaintiffs requested a preliminary injunction, the judge wrote in a footnote that the request was moot because of her striking down of the entire statute. The Attorney General's Office announced today it will not appeal the decision. The law's author, Rep. Terry Goodin, D-Crothersville, has vowed to rewrite and bring the law up again during the 2009 session.

Ken Falk, legal director of the ACLU of Indiana, applauded the decision.

"This emphasizes the fact that it's incumbent on the legislature to think about the First Amendment and constitutional rights when they're drafting legislation," he said Tuesday. "We hope that will happen more in the future."
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  1. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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