Update: New obscene materials law struck down

Michael W. Hoskins
January 1, 2008
Back to TopCommentsE-mailPrintBookmark and Share
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."

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.