Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors

I'm not quite sure how I missed it during the recently completed legislative session, but the Indiana General Assembly adopted, and the Governor signed into law, a bill that is a direct affront to the Constitutional protections of freedom of speech and of the press. I first became aware of House Enrolled Act 1042 in the article "Booksellers incensed over sexual content law" by Tim Evans in today's The Indianapolis Star. The new law requires anyone who "intends to offer for sale or sell sexually explicit materials [to] register with the secretary of state the intent to offer for sale or sell sexually explicit materials and provide a statement detailing the types of materials that the person intends to offer for sale or sell." Indiana Code § 23-1-55-2. After registration, the Secretary of State must notify the appropriate officials in the county where the business is located. At the time of registration, the registrant must pay a $250 fee. (It is interesting to note that this fee is three times greater than any other fee to be collected by the Secretary of State under pursuant to Indiana Code § 23-18-12-3.)

So what exactly is "sexually explicit material"? House Enrolled Act 1042 also addresses that with the the addition to the Indiana Code of § 24-4-16.4-2 which provides:

(a) 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

    (C) public or nonpublic school.

For the sake of argument (and to limit the scope of this discussion), I'll ignore (a)(2) for the moment, although I'm not sure why the government really cares what people want to do in the privacy of their own homes (and query, whether a person selling this time of material over the Internet must register...). Instead, I'll limit the discussion to (a)(1) and products or services that are "harmful to minors ... even if the product or service is not intended to be used by or offered to a minor".

So what does Indiana Code § 35-49-2-2 says is "harmful to minors"?

A matter or performance is harmful to minors for purposes of this article if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.

Please understand that I'm not suggesting that any of the foregoing is good for minors; however, I am a bit troubled by the government -- rather than parents -- deciding that these matters are harmful to minors. Moreover, I can think of many other matters or performances that are far more harmful to minors, such as depictions of drug or alcohol use, violence, racism, sexism, xenophobia, and other similar things. Just consider for a moment that the State of Indiana is worried about minors seeing nudity (unless it has "serious" artistic merit...and query who, precisely, makes that decision) but does not say anything about minors seeing examples of drug and alcohol use throughout popular culture, not to mention the extreme violence that permeates the media (forget about Die Hard or Saw; just watch an episode of Tom & Jerry!). Watch a hip hop video on MTV or an episode of CSI or listen to some of the proponents of the recently defeated immigration legislation to see examples of things that are far more harmful to minors than depictions of sex. And has anyone every met a teenager (still a minor) who did not have a prurient interest in sex? Even sex education classes cause many a whisper and giggle, and the American Pie movies didn't make tons of money because of their metaphysical observations on the human condition.

I'm also troubled by the reliance upon "prevailing standards in the adult community" as a touchstone for determining what is harmful to minors. What troubles one adult may not trouble another adult. And why should material that is acceptable to minors in some places be unsuitable for a minor in another place? Just witness the recent attempt to adopt a "wholesomeness" ordinance in Carmel (where I live) because some uptight women were offended by the window displays at Victoria's Secret. Should my access to literature have any basis on what those women view as "decent"?

Unfortunately, this is a discussion for another day. The point of reflecting on what is "harmful to minors" is to see how that relates back into the new registration requirement. Recall that the definition of "sexually explicit materials" means products or services that are "harmful to minors ... even if the product or service is not intended to be used by or offered to a minor" (emphasis added). In other words, if material might be harmful to a minor, even if not is not offered or sold to minors, the person offering that material must register with the State of Indiana.

Consider a few examples:

• A book store that sells bestsellers (which most of the literary elite would probably say do not contain serious literary merit) which portray sexual acts (how many romance novels don't portray sexual acts) must register before it can sell those books; as one bookseller quoted in The Indianapolis Star article noted: "the law could potentially cover 'just about any coming-of-age novel and books on health, hygiene and human sexuality'".
• A movie theater that plays R-rated movies that contain nudity might have to register, even though minors cannot attend those films (without a parent).
• A video store that rents or sells many PG-13 (let alone R or NC-17) films would have to register (just think about many "teen comedies" like Porky's or American Pie); recall, that it doesn't matter whether the movies will be sold to minors or not, only that they are available.
• A marital counselor who sells books to her adult, married clients regarding sexual techniques and positions, might have to register before she could sell those materials.
• Have you ever walked into a Spencer's Gifts store in the mall?
• What about the Sports Illustrated swimsuit edition? After all, it certainly "describes or represents" nudity and sexual excitement.
• A liquor store (into which a minor may not enter) must register before it can sell Playboy.

Is that what we really want? Is that right? I understand the idea of requiring the local "adult" book store or the business that provides lingerie "shows" to undergo some kind of regulation, but most communities use zoning laws for that sort of regulation. And, while it appears that those are the types of businesses that this law is aimed at, it uses a shotgun approach that targets far too wide and captures far too many business and far too much content and material.

And now we finally come to the real problem with the law: It is unconstitutional. It is worth looking at the often-ignored Indiana Constitution, not just the United States Constitution.

No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible. (Indiana Constitution Article 1, Section 9)

and

Congress shall make no law ... abridging the freedom of speech, or of the press .... (United States Constitution, Amendment I)

Yet this new law will do precisely what those provisions seek to prevent. It will restrain the free interchange of thought and opinion because it will require businesses to self-censor to avoid being tagged as purveyors of sexually explicit material. Moreover, it will require business to pay a fee to the state solely on the basis of the content of material that may be legally sold. How many people might refuse to shop at a bookstore or video rental store that is known to sell "sexually explicit materials"? And what if a local government decides to enact zoning regulations that prohibit business that sell sexually explicit materials. Just imagine a community with no bookstores or theaters because some material might be harmful to minors in the opinion of some adults in the community.

Why is it that we as a society are so worried about our children being exposed to sex, but we don't seem to have a problem exposing them to violence. We are reluctant to let them to hear one of George Carlin's "seven dirty words", but we don't have a problem letting them hear hate speech from their religious leaders. We don't want them to learn how to practice safe sex (and I don't mean just abstinence), but we don't have a problem teaching scientifically inaccurate material if it will prevent sex. We don't want them to drink, but we don't mind letting them see beer commercials everywhere they look. We don't want them to have sex, but we don't mind when American Idol or Monday Night Football is interrupted with advertisements for Viagra, Cialis, and their ilk (and have you tried to explain to an 8-year-old what erectile dysfunction is?). We don't want the government to trample on our rights, but we don't mind asking the government to trample on the rights of "others".  We don't want our children to be exposed to "sexually explicit materials", but we are loathe to pass laws that will be effective in keeping those children away from guns. We want our children to learn to think for themselves, so long as they think the right things...

Let's keep the government out of deciding what kind of books and movies and magazines can be sold. Let's not start down the slippery slope of censorship, whether by government, community, or self-censorship to avoid governmental regulation. Let's not force booksellers and video rental stores and other businesses to register with the government on the basis of content that is protected by the Indiana and United States Constitutions.

I understand that many people disapprove of obscenity and pornography; that's fine. But in a state and nation with protections for freedom of speech, press, and expression, the disapproval of some should not be the basis for the government to limit what content others may have access to. There is (probably) nothing wrong with limiting materials that is available to minors (especially if the parents have access to that material to share with their children at the parents' discretion), but it is absolutely wrong to limit an adult's access to that material on the basis of whether that material might be "harmful to minors", especially when that limitation is based solely on sexual content and completely ignores the other societal matters that are far more harmful both to minors and adults (guns and drugs, for example).

Ask your elected representatives to honor the concepts of freedom of speech and freedom of the press; ask them to step back from government censorship; ask them to repeal this law next session.