Friday, July 25, 2008

Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors (update 4)

I'm not quite sure how I missed this, but apparently Steve Carter, Indiana's Attorney General, has decided not to appeal the recent federal court decision striking down Indiana's law requiring businesses to register prior to selling "sexually explicit" materials.
July 2, 2008

Indiana Attorney General Steve Carter will offer Guidance to Lawmakers Seeking a Fix to a Law on Sexually Explicit Material

(INDIANAPOLIS, IN) – This week’s ruling by a federal district court judge striking down a new law that would have required retailers selling sexually explicit material to register with the state will not be appealed announced Indiana Attorney General Steve Carter today.

“The next general assembly session will provide legislators with an opportunity to explore ways to address the weaknesses of the statute,” Carter said. “The attorney general’s office is available to consult with lawmakers if they choose to pursue revised language to meet their objectives.”

United States District Judge Sarah Evans Barker struck down HEA 1042 on Tuesday, the day that the law was scheduled to take effect. The law would have required people who planned to sell sexually explicit materials to register with the Indiana Secretary of State’s Office and pay a $250 filing fee. The law also required retailers to state the types of materials they intended to sell. Barker ruled that the statute was unconstitutionally broad.

Given how badly the State was thrashed in Judge Barker's opinion (see Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors (update 3)) and how poorly drafted the law was (not to mention how poorly conceived the entire idea is in the first place...), the decision not to appeal is not entirely surprising. I wonder whether Attorney General Carter would have appealed the ruling if he had been running for re-election (so as not to be seen as going "easy" on pornography...)?

I love the note in the press release that lawmakers will have the opportunity to "explore ways to address the weaknesses of the statute" and that the Attorney General's office is available to consult. Hopefully, that consultation will include a brief overview of the concept of the First Amendment.


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Thursday, July 17, 2008

LibraryThing: Several Books

I updated my LibraryThing catalog with a review of the books that I read on vacation: The Codex by Douglas Preston, In Secret Service by Mitch Silver, The Last Oracle [Sigma Force #5] by James Rollins, The Cleaner [Jonathan Quinn #1] by Brett Battles, and The Last Patriot [Scot Harvath #7] by Brad Thor. I'm currently reading Eye of the Archangel [Mallory and Morse #2] by Forrest DeVoe, Jr.


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Tuesday, July 15, 2008

I'm Not Dead; I Went on Vacation!

Sorry for the lack of updates. Our family had a sudden chance to go on vacation (Hilton Head Island) and we jumped at the opportunity. I managed to get myself a nasty sunburn (hmm, 5 hours in the ocean without sunscreen on my back...oops), but I did read a bunch of books while the kids played in the pool. And I got the required Salty Dog t-shirt.


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Wednesday, July 2, 2008

Regal Cinema's Disregard for Patrons and Films (update) a/k/a When Disney Talks, Regal Listens

As I mentioned in my entry Regal Cinema's Disregard for Patrons and Films posted on Monday, my family and I had a poor experience when we went to see WALL-E at our local Regal cinema. As I also mentioned in that post, this was far from the first time that we've had problems with Regal. However, in the past, when I've complained to Regal (including my 2005 letter to Regal's CEO), I've received no response whatsoever.

After posting Monday's story, I decided that I needed to be sure Regal and, more importantly, Pixar were aware of the problem (I certainly doubt that Regal's manager told her supervisors about the problem...). So, I did two things. First, I left a voice mail message at the number for Regal's Customer Relations Department (available here). Then, I called Pixar. After hunting around through the most entertaining voice mail system that I've ever encountered, I was eventually able to connect to an operator. I briefly explained the problem and she said that I "absolutely" needed to bring it to the attention of Pixar's public relations department and transferred me. I was forced to leave a voice mail message (which I did with a fair amount of detail).

And there I left things, wondering if I would ever hear any more about the episode. I wasn't left wondering for long. Yesterday afternoon, less than 24 hours after leaving my message with Pixar, I received a call from Disney (Pixar's parent). It was clear that my voice mail message to Pixar had made its way up the Pixar/Disney corporate ladder. The gentleman from Disney with whom I spoke was extremely courteous and apologetic, even though I kept reiterating that Pixar had nothing to apologize for. He described Pixar's "Perfect Projection Program" (and jokingly noted that Regal didn't seem to qualify for that award). We spoke for some time and had a good discussion about issues like artistic integrity and the entire movie-going experience. Most importantly, he indicated that Disney/Pixar was not happy with the situation and that he had already been in contact with management at Regal to discuss the situation.

Now, here's the interesting part. Remember when I mentioned that in the past I'd received no response from Regal when I complained. Well, it appears that when Disney complains, Regal is very quick to respond. Shortly after getting to work this morning, I received a call from the general manager of the Regal Village Park Cinema. He was very apologetic and, smartly, did not try to make any excuses. He simply said that what happened was wrong. He and I spoke for some time about what a theater patron should expect. During our conversation, I asked whether he was calling because of the voice mail that I'd left with Regal's customer relations department or as a result of Disney contacting Regal. He responded that he heard about the matter from supervisors in Regal management as a result of Disney's communication. Not long after that conversation ended, I received a voice mail from Regal's customer relations manager and he and I spoke a while later. Like the general manager, he was also very apologetic. Both managers were interested in the complaints that I had related to Cloverfield and the matters that I'd set out in my 2005 letter. The customer relations manager seemed surprised that I'd never received a response to my 2005 letter. He was also surprised that I had not yet heard from Regal's district manager. Anyway, I want to commend both the general manager and the customer relations manager on the professionalism and on their expressed concern over the entire episode.

So the question that remains is this: If I hadn't called Pixar, would I have heard from Regal? Would my voice mail to Regal's customer relations have been relegated to the digital equivalent to the circular file (as my 2005 letter apparently was)? Or would Regal have responded and apologized for the event? And, if Regal did respond without Disney's intervention, what is the likelihood that the response would have been quite so rapid?

Just wondering...


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Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors (update 3)

Back in March and April I wrote about Indiana House Enrolled Act 1042 ("HEA 1042") which required requires new businesses to register with the Indiana Secretary of State before selling "sexually explicit materials" (Indiana Limits Freedom of Speech Where the Content Might Be Harmful to Minors, Update 1, and Update 2). The ACLU, Indianapolis Museum of Art, several booksellers, and others challenged the constitutionality of the new statute. Yesterday, Judge Sarah Evans Barker of the United States District Court for the Southern District of Indiana held that the HEA 1042 was, indeed, unconstitutional.

In her written opinion (available from the Indiana Law Blog), Judge Barker found that the statute was not narrowly tailored, as required by the Constitution (in that it encompassed sales to adults and not just minors), incorporated an impermissible and exorbitant fee collected as a condition to the exercise of speech protected by the First Amendment, and was impermissibly vague and overbroad.

A few of Judge Barker's statements are worth noting:
Defendants have not provided any argument or evidence that HEA 1042 "does not burden more speech than is necessary to serve its compelling interests" [citation omitted], nor that enforcement of the existing dissemination law fails to adequately shield children from harmful materials -- nor, for that matter, that the registration and notification scheme (which, as Defendants point out repeatedly, does not restrict sales) would even aid the government's interest to any significant degree. The new law, by explicitly encompassing sales of materials to adults, does not embody the narrow tailoring the Constitution requires when First Amendment activity is so burdened.


Though it is true that no clause in the statute specifically provides for permit denial by the secretary of state's office, surely the county prosecutors will be empowered to decide if and when compliance with the statute has occurred. Thus, Defendants' contention that the statute places no discretion in any public official is in error, because the discretion necessarily afforded to prosecutors charged with enforcement of such a vaguely worded statute ... creates the real and significant possibility that a business will be prosecuted under the statute either for an unregistered sale or for incomplete or erroneous disclosures.


There can be no doubt that compliance with such a vague mandate will be unduly burdensome, will have a chilling effect on expression, and will fail to provide ordinary people with a reasonable degree of notice as to the law's requirements; the Constitution demands no less.


[T]he likelihood of confusion and the resultant self-censorship on the part of merchants is very high, creating a chilling effect on otherwise free speech.


[T]he content-based regulation will surely chill the lawful dissemination of materials (and ... such effects are amplified by the vagueness of the statute and the criminal penalties resulting from its violation); as Plaintiffs have asserted, some will pull stock from their shelves rather than dealing with the administrative hassle and expense of compliance with HEA 1042.

Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written. 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."

It is worth noting that the litigation was strictly limited to the First Amendment implications of the law. The additional problems with its overbreadth that I discussed were not part of the suit. Nevertheless, this is a very good decision for anyone who values the protections and rights granted by the First Amendment.


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