Thursday, March 27, 2008

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

Yesterday, I posted the essay "Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors". Apparently, I am not the only one with concerns about the new law requiring business to register with the state if they will sell "sexually explicit" materials. In today's The Indianapolis Star there are not one, but two editorials voicing concern and opposition to this new law.

First, on the main editorial page, the editorial staff of The Indianapolis Star offers the opinion "Bad law for a good cause invites volumes of worry" (although it should be noted that I used the example of the Sports Illustrated swimsuit edition in my blog yesterday...). The editorial makes several good points, one of which is worth repeating:
[B]usiness people who wish to avoid trouble may feel pressured to pay their $250 and sign up, in effect incurring a fine and a public black mark for purveying words and pictures.

That's censorship. It's also the sort of feel-good governance the elected class can't seem to resist or dares not oppose in the face of public distress over morals and commercial blight.

Also of interest in the editorial was the statement from Governor Daniels' spokesperson:
The spokesperson for Gov. Mitch Daniels says he signed the bill because it
sailed through both chambers of the legislature and he wasn't aware of any
complaints, even though booksellers say they asked him for a veto.

So, as I read that explanation, Gov. Daniels doesn't bother to think independently about a bill before he signs it into law; if it passed the General Assembly by a wide margin, it must be a good law. I think that we should expect our Governor to bring some independent thought and critical analysis to any action that he takes, especially something as important as signing a bill into law.

In addition to the editorial from the editorial staff, columnist John Ketzenberger also wrote about the new law in the Business section in "'Adult' law is too broad to be workable". The point to take away from this editorial is the idea that the State doesn't intend to actively enforce the law.

The problem, however, as I read the law, is that it is not up to the Secretary of State to decide who to prosecute; rather, that would be up to a county prosecutor. Moreover, prosecution is not triggered by the act of registration with the Secretary of State, but rather, the act of selling "sexually explicit" materials without having registered. Thus, if a zealous, conservative prosecutor (or a zealously conservative prosecutor or, perhaps, even a zealous liberal prosecutor) were to walk into a new bookstore or grocery store and see a copy of the Sports Illustrated swimsuit edition (let alone something more "scandalous" like, say Playboy), then that prosecutor could commence an action against the seller of that material for failing to register (a Class B misdemeanor). The prosecutor should know who is registered because the law requires the Secretary of State to notify the county of registrants in that county. In other words, this becomes just another crime on the books that may or may not be enforced from county to county (and which, don't forget, may be interpreted differently from county to county, as well, on the basis of differing community standards).

So, in essence, we have an unconstitutional law targeting a narrow problem that snares an overly broad class of businesses that may or may not be enforced and which the Governor signed into law simply because it "sailed" through the General Assembly. Government at its finest, no?

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