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Tuesday, July 01, 2008

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

Today federal Judge Sarah Evans Barker, in a 31-page opinion, ruled:

For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad. Therefore, Plaintiffs’ Motion for Summary Judgment is GRANTED. IT IS SO ORDERED.
So, another 2008 law found unconstitutional.

The ILB has had nearly a half-dozen earlier entries on HEA 1042. Access them here.

Here is today's opinion in Big Hat Books v. Prosecutors: Adams, et al. Here are some quotes from Judge Barker's opinion:

In this litigation, brought against the prosecutors of each of Indiana’s ninety-two counties, Plaintiffs challenge the constitutionality of I[HEA 1042], which is to go into effect on July 1, 2008, requiring that persons who intend to offer for sale or sell sexually explicit materials must register with Indiana’s secretary of state, pay a fee, and provide a statement detailing the types of materials intended to be offered for sale. Plaintiffs assert that the statute is not narrowly tailored to meet a compelling government interest, that it unlawfully imposes a content-based fee or tax on First Amendment rights, and that it is fatally overbroad and vague. Defendants dispute Plaintiffs’ contentions regarding the constitutionality of HEA 1042, asserting that the statute is a constitutional, reasonable regulation of speech, and is not unconstitutionally vague or overbroad. * * *

Defendants assert that Plaintiffs have not properly brought (and lack standing to bring) a facial challenge to the statute, in accordance with United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1190-91 (2008). * * *

Accordingly, we hold that Plaintiffs have standing to facially challenge HEA 1042 in its entirety.

Plaintiffs challenge the constitutionality of HEA 1042 first on the grounds that it is a content-based regulation of protected expression that fails to meet the requisite standard of strict scrutiny. Defendants assert that an intermediate level of judicial scrutiny is proper here, given the “zoning-like” aims of the statute. * * *

It is clear to us that HEA 1042 is precisely the sort of content-based restriction necessitating examination through the lens of strict scrutiny. As Plaintiffs note, courts have consistently found statutes regulating sexually explicit speech to be content-based restrictions. * * * Defendants’ argument that the statute is akin to a zoning ordinance, and therefore subject to an intermediate degree of scrutiny, is unsupported both factually and by controlling precedent. * * *

Our next inquiry, then, becomes whether the statute is narrowly tailored to serve a compelling governmental interest. * * *

The new law, by explicitly encompassing sales of materials to adults, does not embody the narrow tailoring the Constitution requires when First Amendment activity is so burdened. * * *

Plaintiffs also challenge the statute on the grounds that it operates as an unconstitutional fee or tax on the exercise of constitutional rights. * * *

Defendants assert that the $250.00 fee for registration under HEA 1042, though admittedly higher than any other fee charged for registration of various sorts with the Indiana secretary of state, is justified as a means of covering the costs of the statute’s implementation. * * *

Defendants have provided not a shred of evidence suggesting that the $250.00 fee is proportional to the amount of work required by the secretary of state’s office resulting from a filing, and we cannot fathom how “notification of local officials” could justify such a fee. * * *

Plaintiffs also challenge the statute as an unconstitutional permit requirement for the exercise of protected speech, relying upon the Supreme Court’s pronouncement in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002), that “[e]ven if the issuance of permits . . . is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in [protected] speech constitutes a dramatic departure from our national heritage and constitutional tradition.” * * *

We therefore conclude that the statute fails constitutional scrutiny on this basis as well. * * *

A statute is unconstitutionally vague if it “fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a nonarbitrary, nondiscriminatory manner.” * * *

Plaintiffs assert that several key terms in the statute are inherently vague or defined in a way that fails to provide fair notice, and will thus cause a chilling effect on otherwise lawful conduct. Among these are the requirement that registrants “provide a statement detailing” the types of sexually explicit materials intended to be offered for sale. HEA No. 1042 (to be codified at IC § 23-1-55-2). Plaintiffs object that the statute provides no explanation or instructions regarding the level of detail required in such a statement, or whether (and how often) it needs to be updated when a vendor’s inventory changes.

Defendants admit that the statute suffers from “poor drafting,” but assert that it is not unconstitutionally vague. * * *

There can be no doubt that compliance with such a vague mandate will be unduly burdensome, will have a chilling effect on expression, and will fail to provide ordinary people with a reasonable degree of notice as to the law’s requirements; the Constitution demands no less. * * *

We agree with Plaintiffs that a fair reading of the statute leaves entirely unclear the matter of to whom it applies. Defendants’ argument – that the statute requires only one registration per business per location – is not set out as such in the language of the statute. Inadequate notice of these requirements, the violation of which gives rise to possible criminal sanctions, renders the law unconstitutionally vague. In addition, the likelihood of confusion and the resultant self-censorship on the part of merchants is very high, creating a chilling effect on otherwise free speech. * * *

Plaintiffs’ final argument is that HEA 1042 is substantially overbroad because it burdens a vast amount of expression protected by the First Amendment in an attempt to meet its regulatory aim. * * *

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.”

Conclusion. For the reasons detailed in this entry, Plaintiffs’ facial challenge to HEA 1042 is well-founded. We hold that HEA 1042 unduly burdens First Amendment rights, and is unconstitutionally vague and overbroad.

Posted by Marcia Oddi on July 1, 2008 04:33 PM
Posted to Ind Fed D.Ct. Decisions