Judge Sarah Evans Barker struck down HEA 1042-2008 which was an incredibly broadly written bill purporting to govern adult materials. The Indiana Law Blog has made the opinion available here (pdf).
The bill’s author Terry Goodin said Barker “totally interpreted (the law) wrong” and that it was perfectly clear that the law targeted pornographic businesses.
Well, no, in fact that wasn’t “perfectly clear.” Judge Barker concluded:
Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written. 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. 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.â€
I made the mistake of reading the IndyStar comment posts on this story, which I think lowered my IQ by at least 10 points. But anyway, some genius said the ACLU, who got this law struck down, is “Communist.” Funny, but this seems like just the kind of law a totalitarian Communist regime would love–government trying to control what we can read, etc.
I think that it’s pretty gosh darn clear:
As used in this chapter, “sexually explicit materials” means a product or service:
(1) that is harmful to minors (as described in IC 35-49-2-2), even if the product or service is not intended to be used by or offered to a minor; or
(2) that is designed for use in, marketed primarily for, or provides for:
(A) the stimulation of the human genital organs; or
(B) masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.
(b) The term does not include:
(1) birth control or contraceptive devices; or
(2) services, programs, products, or materials provided by a:
(A) communications service provider (as defined in IC 8-1-32.6-3);
(B) physician; or
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(C) public or nonpublic school.
Does this law apply to Glamour at the checkout? Of course not.
And since when is Playboy non-pornographic?
“Sexually explicit materials” means a product that “provides for” sadism, masochism, or sexual domination.
How would this statute not, therefore, apply to sale of the works of Marquis de Sade or Nabakov’s Lolita?
You’re the lawyer. What does “provides for” mean?
Doesn’t seem like a work of literature “provides for” sadism. Selling whips and whatnot would.
I don’t really get what this law is all about in the first place. So they spend $250 for a license. Big deal. Nothing is prevented from being sold.
I am the lawyer, and I don’t know what the hell “provides for” means. That’s essentially the problem.
These public decency statutes seem to be vaguely worded, in my opinion, because the lawmakers aren’t exactly sure what the hell we’re afraid of.
Like in the Hebron/Lowell area where the Lion’s Den Adult Bookstore took over a vacant store across the street from the truck stops.
I know Schererville tightened up their ordinances to make sure that adult book stores and strip clubs would have a very difficult time opening up in our community.
Buzzcut–
I think you’re focusing only on part 2 of the statute, that seems to talk about sexual devices, etc., which is separated by an “or” from Part 1. In other words, you’ve got to register if you sell anything that falls under either part 1 or part 2. Part 1 of the statute talks about ANY product that is “harmful to minors,” which if you read 35-49-2-2, could include ANY book that even TALKS about nudity for example, if it’s the kind of book that you don’t think a minor should read. That’s where the vagueness comes in I think.
You do realize that by the definition of law…”masochism or a masochistic experience, sadism or a sadistic experience” …. technically The Passion of the Christ, and the BIBLE, …. would qualify under materials rendered for purchase.
That Song of Solomon is pretty racy stuff.
True, and that book isn’t S&M, just good old-fashioned lovin that would fit perfectly in a “Dear Penthouse” article…