overviewfrequently asked questionscases & resources
 
Federal judge throws out new Ind. law on explicit material

By The Associated Press
07.02.08

INDIANAPOLIS — A federal judge has thrown out a new Indiana law requiring bookstores and other retailers to register with the state and pay a $250 fee if they want to sell sexually explicit material.

U.S. District Judge Sarah Evans Barker, ruling yesterday on the day the law was to take effect, found it too broad and said it could be applied against "unquestionably lawful, nonobscene, nonpornographic materials being sold to adults."

"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 ... would appear to necessitate registration under the statute," Barker wrote.

The American Civil Liberties Union took on the case for a team of plaintiffs that included the Indianapolis Museum of Art, bookstores and publishers.

"It's a victory for booksellers and the arts community but most importantly for the First Amendment," said Maxwell Anderson, the art museum's CEO. "I'm concerned as we all should be about restrictions on free expression."

Elizabeth Houghton Barden, owner of Big Hat Books, an independent, general interest store in Indianapolis, said she and her fellow plaintiffs did not want to see lingerie shops opening up next to candy stores, but that was a matter for zoning boards.

"Any time we engage in censorship, we've lost our right to free expression," she said.

State Rep. Terry Goodin, D-Crothersville, said he wrote the law to stop companies from deceiving communities with weak zoning laws. He noted one company told the southern Indiana community of Dale it planned to operate a truck stop but instead opened an adult business.

The law requires people who plan to sell sexually explicit materials to register with the Indiana secretary of state's office, pay the $250 fee and state the types of materials they intend to sell.

"I don't see this gray area that people are talking about," Goodin said. "To me, it's black and white. If you're selling pornography, you know it. If you're not, you don't have to register."

But Barker found the wording of the state law unconstitutionally vague.

"The statute provides no guidance whatsoever to merchants attempting to comply with the law, and surely creates the danger of self-censorship in an effort to avoid criminal penalties," the judge wrote.

Goodin said he would confer with the state attorney general before deciding what to do next, but one option included taking the matter back to lawmakers in the 2009 legislative session.

"I've got pencil in hand," Goodin said. "I'm ready to go. I'm not going to let this sleeping dog lie."

ACLU attorney Ken Falk noted the plaintiffs included the volunteer-run Boxcar Books and Community Center in Bloomington, art galleries, and trade associations representing booksellers, publishers, libraries, video rental stores and music companies.

“They are all legitimate businesses that are far from being the ‘dirty bookstore,’” Falk said.


Previous
Free-speech advocates challenge new Ind. anti-porn law
ACLU, art museum and other plaintiffs say statute, which will require retailers to register with state and pay fee if they want to sell sexually explicit material, violates First Amendment. 05.08.08

Related

Limits on bookstore, library displays overturned (news)
Federal judge finds Arkansas law to shield minors from porn violates First Amendment. 11.18.04

Booksellers challenge Ore. law on sexual material (news)
ACLU says 2007 law is vague and could result in parents' being charged for providing educational books to their children. 05.01.08

News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print


Last system update: Friday, August 22, 2008 | 10:26:07
 SEARCH  MORE
arts & first amendment issues >
Violence & media
Free Speech & Music
Public funding of controversial art
Rating & labeling entertainment
Nudity in art, theater & dance
Parody & satire
Comic books
'Son of Sam' laws
Libel in fiction