ILNews

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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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