Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors (update 2)

Last week, I wrote about Indiana's idiotic new law that requires new businesses to register with the Indiana Secretary of State before selling "sexually explicit materials" (and query why the law only applies to new businesses and not all businesses...). In that initial post, I elected to focus primarily on the freedom of speech and censorship concerns raised by the statute. Over the weekend, I was discussing the statute with some friends and realized that the statute was actually even more problematic than I had realized.

When I wrote initially, I elected to ignore § 24-4-16.4-2(a)(2). To the extent my purpose was to analyze the freedom of speech and censorship concerns, then that decision was correct. However, failing to consider the implications of (a)(2) means that I ignored a whole host of other problems with the statute and vast numbers of other types of businesses that will be required to register before selling "sexually explicit material".

First, let's take another look at the part of the definition of "sexually explicit material" contained in (a)(2):

(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.

The problem is the use of the disjunctive "or" in the introductory provision of (a)(2). If the word "and" had been used, then the definition would have been much more narrowly tailored and would have only applied to products or services that, essentially, exist solely for the purpose of sexual gratification. Whether it is wise to require purveyors of such merchandise to register with the state is a question for another day. Instead, let's consider what the use of the word "or" really means for the definition of "sexually explicit material".

Consider, for a moment, a piece of rope. Clearly, rope is not designed for use in or marketed primarily for any of the types of conduct described in (A) or (B). But, ask yourself whether that piece of rope "provides for" any of that type of conduct? While I'm certainly no expert on the subject, in popular culture depictions of bondage, rope is a key ingredient. So, if rope can provide for sexual bondage, then rope is a "sexually explicit material" and a business selling rope must register. Thus, it would appear that virtually every new hardware store and home supply store must register under the statute.

Next, consider some of the little massage aids sold at stores like Brookstone or The Sharper Image. While they may not be marketed "primarily for" the uses described in (A) and (B), it is at least arguable that they were "designed for use in" and can clearly "provide for" stimulation of human genital organs. (Don't believe me? Take a look at the SoftTouch Acuvibe Body Massager available at Brookstone.) Thus, Brookstone, The Sharper Image, and many sporting goods stores will need to register.

How about toy handcuffs? I guess that will pick up Toys 'R' Us and other toy stores. What about a whip? So much for businesses catering to equestrians (and probably costume shops, too). Fraternities and sororities may have to look for another vendor from which to buy their paddles (do fraternities and sororities still use paddles?) And I hate to even think about all of the jewelers who will have to register because of some of the places that their ... um ... er ... earrings (?) can be hung (is that the correct verb?). And I've seen enough bad jokes in movies to know what cucumbers and bananas can be used for... So I guess grocers need to register too (of course, if they sell KY or maybe even Vaseline, then they were probably registering already, right?).

In fact, it would appear that (B) may even interfere with religious liberty issues; after all, as I understand it, in some religious sects various types of self-mortification and masochism are essential (or at least optional) demonstrations of faith. So, for example, a religious supply store that sold something that the faithful might use in a masochistic way (at least in the eyes of a prosecutor) would have to register.

When it comes right down to it, it is not hard to imagine how virtually any object could "provide for" stimulation or a sado-masochistic/bondage experience. Thus, it is hard to see how any new store could get away with not registering under this statute.

I know, I know, none of this is what the General Assembly meant. Yet, don't you think, when it comes to something as important as, perhaps, the law, the legislature could get it right and say precisely what they mean? Why adopt a statute that will snare the unintended or invite constitutional scrutiny and litigation? Why not examine the issue carefully and work to craft appropriate and narrowly tailored litigation that serves to target the perceived problem and nothing else?

Again, if the word "or" had been replaced by "and" then the scope of the products and services falling within the bounds of the law would be much more narrow. But, as so often happens in the Indiana General Assembly, haste and a desire to "protect" the public has led to the adoption of a poorly thought out, unconstitutional statute that may cause many legitimate businesses concerns but which will probably have little, if any, impact, with regard to stopping the "problem" that the statute sought to address; after all, the business selling "adult" products usually advertise that quite prominently, so will likely not be deterred from having to register. Heck, they may even view the registration as a badge of honor: "Look here: The State of Indiana recognizes that we sell sexually explicit materials! Come check out our new selection of ___ [insert your favorite sexually explicit product here]!" So innocent and honest booksellers and toy stores and hardware vendors worry about running afoul of the law while "adult" stores will happily pay the $250 and start selling their products. What a wonderful world.