The House Enrolled Act 1042 takes effect July 1. It requires a person who intends to sell sexually explicit materials to register and file a statement with the secretary of state. The state is to notify officials in the county in which the business is located. The law imposes a $250 filing fee, and failure to register would be a Class B misdemeanor.
The law defines "sexually explicit material" as "matter or (a) performance harmful to minors" as listed in Indiana Code 35-49-2-2: "(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sadomasochistic abuse; (2) considered as a whole, it appeals to the prurient interest in sex of minors; (3) 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; and (4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors."
The law applies only to new businesses, those that relocate or businesses that begin offering adult material after July 1.
"I think this is very hypocritical," Elizabeth Barden, owner of Big Hat Books in Indianapolis, told reporters. "On the one hand, we feel a need to censor ourselves, while on the other hand, we are spending our tax dollars to free the hearts and minds of the Iraqi people."
Barden said the law could include "just about any coming-of-age novel [as well as] books on health, hygiene and human sexuality."
The American Booksellers Foundation for Free Expression (ABFFE) has come out against the law. Calling it "clearly unconstitutional," ABFFE President Chris Finan said, "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. This is just outrageous from our standpoint, and we believe it is a violation of the 1st Amendment."
Finan said that ABFFE is not aware of similar laws in other states, but if the law goes unchallenged, other states might try to enact similar regulations.
Indiana University School of Law Professor Henry Karlson, a 1st Amendment expert, sees several potential flaws in the law, such as the description of material that "appeals to the prurient interest in sex of minors."
"The problem is, minors have an interest in sex, prurient or otherwise," Karlson said, "and how do you distinguish what is normal and what is prurient?"
Karlson also thinks businesses may not be sure whether to register.
"There's this huge gray area," he said. "If you register, you get lumped in with businesses that sell pornography and other sexually explicit material on some state list, and if you don't, you could face a fine or charges."
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