INDIANAPOLIS - An Indiana law which was intended in part to allow municipalities to pass anti-adult zoning before a potential adult business owner had even filed a building plan has been struck down on a summary judgment motion.
House Enrolled Act (HEA) 1042, which also required potential adult businesspersons to pay a $250 "registration fee" – $160 more than the fee for any other type of state filing – forced anyone "that intends to offer for sale or sell sexually explicit materials" to register such intention with the state, as well as "provide a statement detailing the types of materials that the person intends to offer for sale or sell." Upon receipt of such a statement, the secretary of state "must notify local officials of the county in which the registrant is located of the registrant's intent to offer for sale or sell sexually explicit materials."
Can you say "content-based regulation"?
U.S. District Court Judge Sarah Evans Barker could.
The bill's author, Rep. Terry Goodin, told the Indianapolis Star that "the intent was not to stifle free speech but to help rural communities where weak zoning ordinances allow pornographic establishments to move in."
However, in her Order striking down the law, Judge Barker noted that the sexually explicit materials being targeted were "[A] product or service (1) that is harmful to minors ... 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." The term "harmful to minors" is generally defined using Miller v. California standards with the addition of the phrase "for minors," and also includes any material or performance that "describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse." Omitted from regulation under HEA 1042 were contraceptives and "services, programs, products, or materials provided by a "communications service provider," a physician or a public or nonpublic school. Violation of the law could net fines up to $1,000 and six months in prison.
But while the law only applied to new adult businesses and existing ones that changed their business location after June 30, 2008, Big Hat Books of Indianapolis was planning to make just such a change – and worse, it sold literature with "strong sexual content" which "is not appropriate for all children," such as "Lady Chatterley's Lover," "Lolita," and books about human sexuality that "contain explicit information of a sexual nature" – as well as "a large selection of children's books," which accounted for more than half of the store's revenue. Boxcar Books of Bloomington, a non-profit, all-volunteer bookstore which sold similar materials, was also planning a move, and feared that it would have to pay the $250 registration for not only the business itself, but also for all of its volunteer "employees" – a financial disaster for the non-profit.
Other plaintiffs included the American Booksellers Foundation for Free Expression, the Entertainment Merchants Association, the Freedom to Read Foundation, the Great Lakes Booksellers Association, and the Association of Recording Merchandisers, all of whom had members doing business in Indiana, some of whom were adult bookstores; the Indianapolis Museum of Art; the Indianapolis Downtown Artists and Dealers Association; and the American Civil Liberties Union of Indiana Foundation.
Originally, Indiana had tried to have the lawsuit thrown out on the basis that while the plaintiffs were all sellers of materials harmful to minors, none sold "sexual devices" for the stimulation of genitals, or for use in consensual bondage. The plaintiffs argued, however, that the word "devices" appeared nowhere in the statute, and that the books and videos they sold could easily be used for genital stimulation, or for facilitating domination or sadistic play.
In their Motion for Summary Judgment, plaintiffs argued that, as a content-based restriction, HEA 1042 should be analyzed using strict scrutiny, under which "content-based regulations are 'presumptively invalid' and can be upheld only if narrowly tailored to serve compelling state interests." Defendants urged the Court to apply Justice Anthony Kennedy's concurrence in City of Los Angeles v. Alameda Books, which called zoning restrictions worthy only of intermediate scrutiny as a "time, place and manner" regulation.
Judge Barker opted for the former view.
"It is clear to us that HEA 1042 is precisely the sort of content-based restriction necessitating examination through the lens of strict scrutiny," she wrote. "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."
Under the Court's strict scrutiny analysis, Judge Barker noted Justice Kennedy's admonition in Ashcroft v. Free Speech Coalition that, "[T]he government may not 'reduc[e] ... the adult population ... to ... only what is fit for children'." She also found that the state could employ much less restrictive means to prevent dissemination of adult material to minors, and noted that such laws already exist on Indiana's books. She found the "registration fee" to be tantamount to a tax on protected expression; the registration itself to be "an unconstitutional permit requirement for the exercise of protected speech"; and that the statute was vague and overbroad.
"Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written," Judge Barker ruled. "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.'"
"I don't see this gray area that people are talking about," Goodin told the Chicago Sun-Times. "To me, it's black and white. If you're selling pornography, you know it. If you're not, you don't have to register."
For all of the reasons stated, Judge Barker granted the Motion for Summary Judgment, and enjoined enforcement of the Indiana law.
In a press release issued today, Indiana Attorney General Steve Carter said that his office would not appeal Judge Barker's ruling.
"The next general assembly session will provide legislators with an opportunity to explore ways to address the weaknesses of the statute," Carter told WANE-TV 15. "The attorney general's office is available to consult with lawmakers if they choose to pursue revised language to meet their objectives."
Said Goodin, "I'm ready to start all over. I'm just going to have to figure out a way to tighten [the law] up. I'm not going to let this sleeping dog lie."