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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. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  2. I agree. My husband has almost the exact same situation. Age states and all.

  3. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  4. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

  5. Journalism may just be asleep. I pray this editorial is more than just a passing toss and turn. Indiana's old boy system of ruling over attorneys is cultish. Unmask them oh guardians of democracy.

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