INDIANAPOLIS - An association of First Amendment supporters and retailers have filed suit against the state of Indiana over a new law that would require sellers of sexually explicit and even softcore material to pay a litany of fees in order to do business.
Among the plaintiffs in the suit are the ACLU of Indiana, the Indianapolis Museum of Art, the Media Coalition, the Association of American Publishers Inc. and the National Association of Recording Merchandisers.
At issue is Indiana House Bill 1042, which Gov. Mitch Daniels signed into law at the end of March. The new law, which covers any business opening after July 1, 2008, or any existing business which changes location after that date, requires the affected business to register with the Secretary of State and pay a $250 registration fee, with several other fees possibly to follow, if the business sells "sexually explicit materials."
The big question, of course, is, what constitutes "sexually explicit materials"? Well, among other things, it's any "product or service" that is "harmful to minors" (even if the product or service isn't intended ever to be used by or offered to a minor); or that is "designed for use in, marketed primarily for, or provides for the stimulation of the human genital organs or masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination."
As to what is "harmful to minors," that's another section of the Indiana Code, 35-49-2-2, which generally defines the term using the language of the Miller v. California test for obscenity, with "for minors" added after each prong:
1. It describes or represents, in any form, nudity, sexual conduct, sexual excitement or sadomasochistic abuse.
2. Considered as a whole, it appeals to the prurient interest in sex of minors.
3. It is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors.
4. Considered as a whole, it lacks serious literary, artistic, political or scientific value to minors.
How the above squares with state Rep. Terry Goodin's claim that he wrote the law to "stop companies from deceiving communities with weak zoning laws to set up pornography stores," according to the Chicago Tribune, is anybody's guess. Goodin claims the law will target "pornography vendors that pop up along interstate exits" in unincorporated areas. What it will do, however, is to require any business that deals in any way with any product or service that's remotely sexual - for instance, museums or art stores that sell statues of Michelangelo's David, or bookstores that sell mildly erotic literature or information on erectile dysfunction - to pay the $250 fee.
"We're talking about a law that has very broad and very vague and, we would contend, very unconstitutional restrictions and burdens," said Ken Falk, legal director of the American Civil Liberties Union of Indiana. "To the best of my knowledge, there is no similar law in the United States."
But while Maxwell Anderson, the Indiana Museum's CEO, noted that since the museum store sells art history books, in which nudity plays a prominent (and fee-triggering) role, the law should be written more narrowly, Goodin claims that there's no problem at all.
"Individuals, corporations, companies know whether or not they're selling pornography," Goodin said. "There's no question about that."
And as for people who think that their First Amendment rights will be infringed by requiring the museums, book, video and music stores where they shop to pay the $250 fee?
"It's absolutely ridiculous. I think the folks who feel this way are being deceived by the pornography industry," he said. "It's unfortunate."
Welcome to the LCB list, Terry!
