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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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