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Judge throws out new Ind. law on explicit material

07/01/2008
By KEN KUSMER / Associated Press

A federal judge threw out a new Indiana law requiring bookstores and other retailers to register with the state and pay a $250 fee if they want to sell sexually explicit material.

U.S. District Judge Sarah Evans Barker, ruling Tuesday on the day the law took effect, found it too broad and said it could be applied against "unquestionably lawful, nonobscene, nonpornographic materials being sold to adults."

"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 ... would appear to necessitate registration under the statute," Barker wrote.

The American Civil Liberties Union took on the case for a team of plaintiffs that included the Indianapolis Museum of Art, bookstores and publishers.

"It's a victory for booksellers and the arts community but most importantly for the First Amendment," said Maxwell Anderson, the art museum's CEO. "I'm concerned as we all should be about restrictions on free expression."

Elizabeth Houghton Barden, owner of Big Hat Books, an independent, general interest store in Indianapolis, said she and her fellow plaintiffs did not want to see lingerie shops opening up next to candy stores, but that was a matter for zoning boards.

"Any time we engage in censorship, we've lost our right to free expression," she said.

Rep. Terry Goodin, D-Crothersville, said he wrote the law to stop companies from deceiving communities with weak zoning laws. He noted one company told the southern Indiana community of Dale it planned to operate a truck stop but instead opened an adult business.

The law required people who planned to sell sexually explicit materials to register with the Indiana secretary of state's office, pay the $250 fee and state the types of materials they intended to sell.

"I don't see this gray area that people are talking about," Goodin said. "To me, it's black and white. If you're selling pornography, you know it. If you're not, you don't have to register."

But Barker found the wording of the state law unconstitutionally vague.

"The statute provides no guidance whatsoever to merchants attempting to comply with the law, and surely creates the danger of self-censorship in an effort to avoid criminal penalties," the judge wrote.

Goodin said he would confer with the state attorney general before decided what to do next, but one option included taking the matter back to lawmakers in the 2009 legislative session.

"I've got pencil in hand," Goodin said. "I'm ready to go. I'm not going to let this sleeping dog lie."
ACLU attorney Ken Falk noted the plaintiffs included the volunteer-run Boxcar Books and Community Center in Bloomington, art galleries, and trade associations representing booksellers, publishers, libraries, video rental stores and music companies.

"They are all legitimate businesses that are far from being the "'dirty bookstore,'" Falk said.
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Associated Press writer Deanna Martin in Indianapolis contributed to this report.