In March 2008, the Indiana legislature passed HEA 1042, a law that would have required anyone who sells material “harmful to minors” to register with the state, describe the materials deemed “harmful to minors,” and pay a $250 registration fee. The law raised immediate concerns since the registration requirement appeared to apply to individuals as well as businesses and institutions, and could arguably apply to any bookstore, library, museum, or school selling books, images, or other expressive works containing depictions or descriptions of sexual activity, including health and sex ed texts, works of literature, and fine art.
These concerns led the Freedom to Read Foundation to join several Indiana institutions and free expression organizations to challenge the constitutionality of HEA 1042. FTRF’s co-plaintiffs included two Indianapolis bookstores, the Indianapolis Museum of Art, the Indianapolis Downtown Artists and Dealers’ Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Entertainment Merchants Association, the National Association of Recording Merchandisers, and the Great Lakes Booksellers Association. The lawsuit, Big Hat Books v. Prosecutors, was filed on May 7, 2008.
Last week, Federal Judge Sarah Evans Barker struck down the law on the eve of its July 1 enactment, ruling that the law represented an unconstitutional burden on free expression. She noted that the law required individuals to pay a tax and obtain a permit for engaging in First Amendment protected activities, requirements expressly forbidden by the Constitution. She further noted that the law was so vague that it failed to provide any reasonable notice as to what materials required registration or who was required to register under the law, thereby allowing arbitrary and discriminatory enforcement of the statute. Finally, she noted the law regulated far more speech than necessary, sweeping in lawful, non-obscene items such as romance novels, R-rated DVDs, and old Playboy magazines sold at garage or used book sales. She held that such overbreadth could chill the lawful dissemination of materials by causing individuals and institutions to pull such items from sale rather than risk prosecution under the law.
The court’s full opinion can be found at http://www.insd.uscourts.gov/Opinions/AR5960O1.pdf