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Thursday, July 03, 2008

Ind. Decisions - Still more on: "Booksellers incensed over sexual content law"

As reported here yesterday in the ILB, Attorney General Carter has elected not to appeal Judge Barker's July 1st decision in the Big Hat Books case. Several papers editorialize today on the case.

The Indianapolis Star's editorial is headed "Earning an XXX rating with an anti-porn show:

Tuesday, Barker rightly tossed out a vague, sloppily written state law requiring sellers of "sexually explicit" materials to register with the secretary of state and pay a $250 fee.

A little over three years ago, the same judge upheld key parts of an Indianapolis ordinance that restricted the operations of adult bookstores. (The ruling remains under appeal).

The difference? The city ordinance was aimed essentially at curbing crime and other unsavory activities spawned by adult businesses. The state law was aimed at the words and pictures they sell, and that violates the First Amendment.

Advertised by its legislative sponsors as an answer to the very real problem of X-rated emporia dominating interstate exits and hawking their wares on giant billboards, House Enrolled Act 1042 said virtually nothing about zoning, location, hours of operation and other issues not related to free speech.

Instead, it cast a net over any and all purveyors of sex-related merchandise, meandering through "definitions" so loose that the law could be applied to classic works of art and to the places that sell and display them. The lawsuit that led to the ruling was filed by bookstores and the Indianapolis Museum of Art, which feared they'd be operating under a cloud if the statute had taken effect Tuesday as scheduled. A sweeping censorship law was not doing the state's national image a great deal of good either.

Not surprisingly, the bill's principal sponsor, Rep. Terry Goodin, D-Crothersville, says the judge got it wrong and he'll be back to try again. Implying that one is leading the battle against the forces of smut is astute politically; but in fairness, Goodin is addressing a real quality-of-life issue. His proposed solution, however, never should have become reality. Gov. Mitch Daniels' rationale for signing HEA 1042 into law -- that he had not heard complaints about it -- is likewise unreal.

There is a solution, or at least an approach, to the problems posed by adult bookstores. The solution must be local, must be focused, and is limited to offshoot effects on the order of noise, drunkenness, prostitution or underage employees or customers. These are not constitutionally protected. Nor are they matters of personal taste. Books, movies, pictures and statues, whether sold off the exit ramp or in the museum gift shop, are another story. Someone should read it to Indiana's elected leaders.

The Richmond Palladium-Item's editorial is headed "Good choices made to scrap ill-advised law." It concludes:
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.

But that represents a failure of good zoning laws, not cause for an end run around First Amendment guarantees of expression.

As we noted in this space three months ago, just after Gov. Mitch Daniels sought to legitimatize with his signature this ill-conceived legislation: "We struggle with the idea of placing words or pictures on the same kind of state registry now reserved for convicted sex offenders. Words and pictures deserve wider protection."

Thanks to Judge Barker, that struggle is over.

Thanks to Attorney General Steve Carter, there will be no costly appeal, at taxpayers' expense, of the judge's ruling. Carter said Wednesday that if legislators want such a law, they could try again in the next session to enact a stronger law with language that is clearer.

Not to mention constitutional.

Posted by Marcia Oddi on July 3, 2008 07:26 AM
Posted to Ind Fed D.Ct. Decisions