Henry Karlson, a professor at Indiana University School of Law-Indianapolis and a First Amendment expert, said he sees several potential flaws in the law.
One is the threshold it cites for having to file with the state. It relies on a statute that describes sexually explicit material that can be viewed as "harmful" to minors, including 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?"
Another provision of the statute requires registration if a business carries an item when "considered as a whole, it lacks serious literary, artistic, political or scientific value for minors." While such a definition is pretty clear for adults, Karlson said, that is not the case when it involves minors.
"I can see some communities where people might think some of the literary classics did not meet that standard for minors," he said.
Karlson said he thinks businesses may have trouble knowing 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."
The focus of this report is on booksellers, but there are many other businesses which need to be concerned about it as well. For example, you can find items for sale on the shelves of your neighborhood drugstore which are intended to enhance sexual pleasure from lubricants to male enhancement products. A friend of mine who works for a major drugstore chain says that customers in smaller communities will complain about fitness magazines being sexually explicit because of the way models on the cover pages are dressed. Wouldn't an Abercrombie & Fitch catalog offered for sale in a retail store meet the definition of this law by some people's standards? And this law just doesn't apply to products. It includes services. If Melyssa Donaghy decides to offer dominatrix services again, she will be required to register her business with the state. Will a massage therapist fall under the law's reach? This is how the new law defines sexually explicit materials:
As used in this chapter, "sexually explicit materials" means a product or service:
(1) that is harmful to minors (as described in IC 35-49-2-2), even if the product or service is not intended to be used by or offered to a minor; or
(2) that is designed for use in, marketed primarily for, or provides for:
(A) the stimulation of the human genital organs; or
(B) masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.
(b) The term does not include:
(1) birth control or contraceptive devices; or
(2) services, programs, products, or materials provided by a:
(A) communications service provider (as defined in IC 8-1-32.6-3);
(B) physician; or
(C) public or nonpublic school.
Sec. 3. A person or an employee or agent of a person may not offer for sale
or sell sexually explicit materials unless a registration and statement are
properly filed as described in IC 23-1-55-1.
After reading the new law, I find it difficult to believe the sponsors of this legislation were only interested in targeting adult bookstores. You can find any number of laws across the country which state and local governments have enacted to regulate adult bookstores, and those laws are narrowly tailored to target those particular businesses. Little attempt was made to narrow the focus of this legislation. Many businesses may feel compelled to register under this new law simply to avoid the criminal penalty. It makes it a Class B misdemeanor to offer sexually explicit materials for sale without registering with the state. Because of the breadth of the law, many businesses may find themselves being labeled as sellers of pornography. I doubt a local drugstore would agree with that characterization at all. I noticed there's an exemption for telecommunications providers who offer 1-900 sex lines. It looks like the telecommunications lobbyists were on top of this bill even if lobbyists for bookstores and others weren't.