Wednesday, July 2, 2008

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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