Critics say state effort to target adult material casts too wide a net
3-27-2008 Indiana:
A new state law that requires sellers of adult material to register with the state has Hoosier bookstore owners fuming about government censorship and threatening a legal challenge.
"This lumps us in with businesses that sell things that you can't even mention in a family newspaper," said Ernie Ford, owner of Fine Print Book Store in Greencastle.
Ford was talking about House Enrolled Act 1042, which Gov. Mitch Daniels signed into law last week. Ford was one of 15 independent Indiana booksellers who signed a letter last week urging Daniels to veto the legislation.
The new law that takes effect July 1 requires businesses that sell sexually explicit material to pay a $250 fee and register with the secretary of state, which would then pass the information to municipal or county officials so they can monitor the businesses for potential violations of local ordinances.
The bill was aimed specifically at helping counties that do not have zoning ordinances track businesses selling sexually explicit material, including videos, magazines and books, said Sen. Brent Steele, R-Bedford, who was a co-sponsor of the legislation.
Steele said the bill's author, Rep. Terry Goodin, D-Austin, was targeting adult stores popping up in rural areas along interstates in Southern Indiana. Goodin could not be reached Tuesday for comment.
Jane Jankowski, the governor's spokeswoman, said in a statement issued Tuesday that Daniels' office has no record of receiving the letter from booksellers.
"(The bill) received strong support in both houses; no complaints were brought to our attention as it worked its way through the legislative process," she said.
Steele said he believes bookstore owners are getting worked up over nothing.
The law does not apply to businesses that sell sexually explicit material on or before June 30; it applies only to new businesses, those that relocate or businesses that begin offering such material after that date.
"I just don't think that their concern is legitimate," Steele said.
But groups representing state and national booksellers say the law casts its net too wide. A legal scholar agrees, calling it overly broad and so ambiguous that it may violate constitutional rights.
"The way we read this bill, if you stock a single book with sexual content -- even a novel or a book about sex education -- you will have to register as a business that sells sexually explicit material," said Chris Finan, president of American Booksellers Foundation for Free Expression.
"This is just outrageous from our standpoint, and we believe it is a violation of the First Amendment."
While the law does not prohibit stores from selling a book with sexual content, he said, it has a chilling effect that could force sellers to limit the scope of their offerings or get out of the business rather than being placed on a state list of businesses that sell sexually explicit works.
Finan said his group will ask the Media Coalition -- a New York-based group that defends Americans' First Amendment right to produce and sell books, movies, magazines, recordings, DVDs, videotapes and video games, as well as the public's right to have access to the broadest possible range of opinion and entertainment -- to take legal action to overturn the legislation.
A decision by the coalition on whether to enter the fight is expected by mid-April, he said.
Finan added that the association is not aware of similar laws in any other states. If it goes unchallenged in Indiana, he said, other states might try to enact similar regulations.
"I think this is very hypocritical," said Elizabeth Barden, owner of Big Hat Books on the Northside. "On the one hand, we feel a need to censor ourselves, while on the other hand, we are spending our tax dollars to free the hearts and minds of the Iraqi people."
Barden said the law could potentially cover "just about any coming-of-age novel and books on health, hygiene and human sexuality."
Henry Karlson, a professor at Indiana University School of Law-Indianapolis and a First Amendment expert, said he sees several potential flaws in the law.
One is the threshold it cites for having to file with the state. It relies on a statute that describes sexually explicit material that can be viewed as "harmful" to minors, including material that "appeals to the prurient interest in sex of minors."
"The problem is, minors have an interest in sex, prurient or otherwise," Karlson said, "and how do you distinguish what is normal and what is prurient?"
Another provision of the statute requires registration if a business carries an item when "considered as a whole, it lacks serious literary, artistic, political or scientific value for minors." While such a definition is pretty clear for adults, Karlson said, that is not the case when it involves minors.
"I can see some communities where people might think some of the literary classics did not meet that standard for minors," he said.
Karlson said he thinks businesses may have trouble knowing whether to register.
"There's this huge gray area," he said. "If you register, you get lumped in with businesses that sell pornography and other sexually explicit material on some state list, and if you don't, you could face a fine or charges." ..more.. by Tim Evans
