Indiana protects the children, one Alison Bechdel comic at a time

From Tom Smith comes this story of a new law in Indiana requiring anyone who sells sexually explicit material to register with the State, and the response of the American Booksellers Foundation for Free Expression.

Here's the text of the law (in italics), with my commentary (in roman):

[NOTE: I'm not a lawyer, and this isn't legal advice. If you're a bookstore owner in Indiana, don't rely on anything I say here.]

Chapter 55. Intention to Sell Sexually Explicit Materials

Sec. 1. This chapter does not apply to a person who sells sexually explicit materials on June 30, 2008, unless the person changes the person's business location after June 30, 2008.

This is a "grandfather clause" that means that bookstores that already exist don't have to register - but if a business changes location, changes ownership, or opens a new branch, it may apply.

Sec. 2. A person (as defined in IC 35-41-1-22) that intends to offer for sale or sell sexually explicit materials shall 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.

I'm assuming, without having looked it up, that the "person" definition there is meant to include corporations, partnerships, and limited liability companies.

The actual definition of "sexually explicit materials" occurs later in the act, and will be discussed there.

Sec. 3. (a) As used in this section, "local officials of the county" refer to all of the following:
(1) The county executive.
(2) If a person described in section 2 of this chapter intends to locate in a municipality, the executive of the municipality.
(3) A local entity that supervises a zoning board in the county.

(b) After receiving a registration described in section 2 of this chapter, the secretary of state shall notify the local officials of the county in which a person described in section 2 of this chapter intends to offer for sale or sell sexually explicit materials of
the registration filed under section 2 of this chapter.

This is procedural stuff that says the Indiana Department of State (with whom the bookseller registers) must notify local officials, and which official needs to be notified. Most telling is section (a)(3), which says that the supervisor of a zoning board needs to be notified. It's curious - you'd think that a zoning board would *already* ask about this sort of thing; one of the whole points of zoning laws are so that local authorities can say "not in my backyard" to porn stores and sex shops. More on this later.

SECTION 2. IC 23-18-12-3, AS AMENDED BY P.L.60-2007, SECTION 6, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]: Sec. 3. (a) Except as provided in subsection (e), the secretary of state shall collect the following fees when the documents described in this section are delivered for filing:
Document Fee
(1) Articles of organization $90
(2) Application for use of
indistinguishable name $20
(3) Application for reservation of name $20
(4) Application for renewal of
reservation $20
(5) Notice of transfer or cancellation
of reservation $20
(6) Application of registered name $30
(7) Application for renewal of registered name $30
(8) Certificate of change of registered
agent's business address No Fee
(9) Certificate of resignation of
agent No Fee
(10) Articles of amendment $30
(11) Restatement of articles of
organization $30
(12) Articles of dissolution $30
(13) Application for certificate of
authority $90
(14) Application for amended
certificate of authority $30
(15) Application for certificate of
withdrawal $30
(16) Application for reinstatement
following administrative dissolution $30
(17) Articles of correction $30
(18) Certificate of change of
registered agent No Fee
(19) Application for certificate of
existence or authorization $15
(20) Biennial report filed in writing,
including by facsimile $30
(21) Biennial report filed by electronic medium $20
(22) Articles of merger involving a domestic limited liability company $90
(23) Any other document required or
permitted to be filed under this article $30
(24) Registration of intent to sell
sexually explicit materials, products, or services $250

I've kept the full list in there for a reason. Look at the costs of other registrations - they're anywhere from no fee (for updating information about the registered agent) to $90 (for articles of organization or a certificate of authority). In contrast, the registration fee for intent to sell sexually explicit materials, products or services is a whopping $250. That kind of fee isn't meant to cover the costs of processing or keep the number of applications filed under control - it's meant to discourage people from engaging in the business altogether. Sure, a sex shop is likely to just absorb the one-time fee as a cost of doing business, but what about the folks for whom these "materials, products, or services" are more incidental? Remember, it's not *just* that extra $250 that's at stake, it's the zoning application as well. If it jeapordizes the main business,

[Sections (b) through (e) omitted, because they're not relevant to the new law].

SECTION 3. IC 24-4-16.4 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2008]:
Chapter 16.4. Sexually Explicit Materials
Sec. 1. As used in this chapter, "person" has the meaning set forth in IC 35-41-1-22.

This is the same definition of "person" used above.

Sec. 2. (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

This is an interesting phrasing. The presumed rationale is the "what about the children?" argument - that minors may have access to the product or service even if they're not supposed to, by sneaking in or shoplifting or whatnot. But the whole point of "harmful to minors" being a standard in the first place is that the State has an authority to regulate these materials with respect to minors that it does not have with respect to adults. The definition of "harmful to minors" is an adaptation of the Miller test (with S&M thrown in), as modified by Ginsberg v. New York, which allowed a different standard for minors than adults:

Matter or performance harmful to minors
Sec. 2. 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.

Those uses of "for minors" aren't incidental. Since the cultural narrative is that *every* instance described in subsection (1) appeals to the prurient interest in sex of minors (cue Kristy Now from Southland Tales: "teenage horniness is not a crime!"), this makes every representation fit subsection (2). Since the adult community typically decides *no* such material of any explicitness is suitable for minors (hell, even frank sex ed books get challenged), subsection (3) is easy to fulfill. The inclusion of "for minors" in subsection (4) is most insidious of all, because it strips many literary, artistic, political and scientific works of protection because a hypothetical 16-year-old might not appreciate their merit, but get off on a nude figure or description of sex. And don't forget - we're not just talking about restricting these works from minors, as in Ginsberg; you need to pay several hundred dollars to sell these

Back to the new law:

(2) that is designed for use in, marketed primarily for, or provides for:
(A) the stimulation of the human genital organs; or

In other words, vibrators. (Yeah, I know there are other products that fit this category, but they're much, much rarer.) And just after Texas lifted its ban. Is there a Law of Conservation of Patriarchy or something?

Aside from the fact that there's a disparate impact here - or arguably because of it - what's the state purpose here? Is there really a correlation with the sale of vibrators and criminal elements? Are they worried about hordes of sexually satisfied women running riot?

(B) masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.

Wholly unsurprising, for two reasons. Not only is it straightforwardly anti-kink, it gets around the issue of BDSM where everyone stays clothed and no conventional sex happens.

Of course, these terms aren't defined (yeah, good luck with that!) so it's pretty much a guarantee that someone's going to argue that a corset at Hot Topic is for the purpose of sexual domination.

(b) The term does not include:
(1) birth control or contraceptive devices;

Because that would be obviously unconstitutional.

or
(2) services, programs, products, or materials provided by a:
(A) communications service provider (as defined in IC 8-1-32.6-3);

Because that would pre-empt the federal Communications Decency Act, which gives "communications service providers" immunity from liability for the content they distribute;

(B) physician;

Again, that'd be pretty obviously unconstitutional.

or (C) public or nonpublic school.

They're obviously trying to make sure that schools aren't required to register in order to conduct classes, but I have to wonder something: given the definition of "sexually explicit materials" above, what sexually explicit materials does one expect to be sold at a school? Last I checked, schools typically didn't sell vibrators or BDSM gear on campus. That leaves, of course, "material that is harmful to minors." You know, I have this sneaking suspicion that, if it's okay to exempt schools here, this material may not actually be harmful to minors.

Sec. 3. A person or an employee or agent of a person may not offer for sale or sell sexually explicit materials unless a registration and statement are properly filed as described in IC 23-1-55-1.

Sec. 4. A person or an employee or agent of a person who knowingly or intentionally offers for sale or sells sexually explicit materials in violation of this chapter commits unregistered sale of sexually explicit materials, a Class B misdemeanor.

And, of course, we need to actually make it a crime, or the law has no teeth. Of course, the big issue isn't the penalty from the misdemeanor - it's losing the ability to do business. The effect of this law is actually relatively minor on dedicated sex shops and porn stores - they're not going to be run out of business by a one-time $250 fee. (Not that they should have to pay it, and not that there's a good chance such a registry would be misused either by a zealous prosecutor or by people who want to harass the business.)

Another effect is that, while businesses are required to register, anyone who's not a business is still covered by these sections. So if I live in Indiana and I put a book of Leonard Nemoy's photography up on eBay, I've broken the law.

I'm reasonably confident (though not certain - Indiana seems to be a very conservative place) that this law won't survive the first court challenge, but still - how does it even get that far?

I'd call for an "I Am Spartacus" style protest, overwhelming the state with registrations, but there's that pesky $250 fee again.