Registration for US Adult Business

A federal judge threw out a new Indiana law requiring bookstores and other retailers to register with the state and pay a $250 fee if they want to sell sexually explicit material.

U.S. District Judge Sarah Evans Barker, ruled on the day the law took effect, found it too broad and said it could be applied against unquestionably lawful, non-obscene, non-pornographic materials being sold to adults.

'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 ... would appear to necessitate registration under the statute,' Barker wrote.

The American Civil Liberties Union took on the case for a team of plaintiffs that included the Indianapolis Museum of Art, bookstores and publishers.

It's a victory for booksellers and the arts community but most importantly for the First Amendment, said Maxwell Anderson, the art museum's CEO. I'm concerned as we all should be about restrictions on free expression.

Bill sponsor Terry Goodin said he would confer with the state attorney general before decided what to do next, but one option included taking the matter back to lawmakers in the 2009 legislative session: I've got pencil in hand. I'm ready to go. I'm not going to let this sleeping dog lie.

An association of First Amendment supporters and retailers have filed suit against the state of Indiana over a new law that would require sellers of sexually explicit and even softcore material to pay a litany of fees in order to do business.

Among the plaintiffs in the suit are the ACLU of Indiana, the Indianapolis Museum of Art, the Media Coalition, the Association of American Publishers Inc. and the National Association of Recording Merchandisers.

At issue is Indiana House Bill 1042, which Gov. Mitch Daniels signed into law at the end of March. The new law, which covers any business opening after July 1, 2008, or any existing business which changes location after that date, requires the affected business to register with the Secretary of State and pay a $250 registration fee, with several other fees possibly to follow, if the business sells sexually explicit materials.

The big question, of course, is, what constitutes sexually explicit materials ? Well, among other things, it's any product or service that is harmful to minors or that is designed for use in, marketed primarily for, or provides for the stimulation of the human genital organs or masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.

As to what is harmful to minors :

• It describes or represents, in any form, nudity, sexual conduct, sexual excitement or sadomasochistic abuse.
• Considered as a whole, it appeals to the prurient interest in sex of minors.
• 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.
• Considered as a whole, it lacks serious literary, artistic, political or scientific value to minors.

Rep. Terry Goodin claims the law will target pornography vendors that pop up along interstate exits in unincorporated areas. What it will do, however, is to require any business that deals in any way with any product or service that's remotely sexual - for instance, museums or art stores that sell statues of Michelangelo's David, or bookstores that sell mildly erotic literature or information on erectile dysfunction - to pay the $250 fee.

We're talking about a law that has very broad and very vague and, we would contend, very unconstitutional restrictions and burdens, said Ken Falk, legal director of the American Civil Liberties Union of Indiana: To the best of my knowledge, there is no similar law in the United States.

A new Indiana law that requires sellers of adult material to register with the state has Hoosier bookstore owners fuming about government censorship and threatening a legal challenge.

This lumps us in with businesses that sell things that you can’t even mention in a family newspaper, said Ernie Ford, owner of Fine Print Book Store in Greencastle.

Ford was talking about HEA 1042, which Governor Mitch Daniels signed into law last week. He was one of 15 independent Indiana booksellers who signed a letter last week urging Daniels to veto the legislation.

The new law that takes effect July 1 requires businesses that sell sexually explicit material to pay a $250 fee and register with the secretary of state, which would then pass the information to municipal or county officials so they can monitor the businesses for potential violations of local ordinances.

Co-sponsor Brent Steele said the law does not apply to businesses that sold sexually explicit material on or before June 30; it applies only to new businesses, those that relocate or businesses that begin offering such material after that date.

But groups representing state and national booksellers say the law casts its net too wide. A legal scholar agrees, calling it overly broad and so ambiguous that it may violate constitutional rights.

The way we read this bill, if you stock a single book with sexual content — even a novel or a book about sex education — you will have to register as a business that sells sexually explicit material, said Chris Finan, president of American Booksellers Foundation for Free Expression: This is just outrageous from our standpoint, and we believe it is a violation of the First Amendment.

While the law does not prohibit stores from selling a book with sexual content, he said, it has a chilling effect that could force sellers to limit the scope of their offerings or get out of the business rather than being placed on a state list of businesses that sell sexually explicit works.

Finan said his group will ask the Media Coalition — a New York-based group that defends Americans’ First Amendment right to produce and sell books, movies, magazines, recordings, DVDs, videotapes and video games, as well as the public’s right to have access to the broadest possible range of opinion and entertainment — to take legal action to overturn the legislation. A decision by the coalition on whether to enter the fight is expected by mid-April, he said.