Judge Barker Strikes Down New Law Regulating Businesses Offering Sexually Explicit Materials For Sale

Judge Sarah Evans Barker didn't even bother with a preliminary injunction from the enforcement of a new Indiana law which requires any individual or business which offers sexually explicit materials or services for sale to register with the Secretary of State and pay a $250 registration fee. Instead, she entered summary judgment in favor of the bookstore-owner plaintiffs who brought the suit, declaring the statute unconstitutional on its face.

Believe it or not, the Defendants actually tried to argue in the case that the statute only applied to businesses which sold "sexual devices", even though the language of the statute plainly covered any products or services. Judge Barker agreed the statute plainly had the broader meaning argued by the plaintiffs. Judge Barker applied a strict scrutiny analysis to the statute because it involved a content-based regulation of protected expression. She rejected the defendants' argument that the statute was akin to a zoning ordinance restricting the location of such businesses and, therefore, should be afforded lesser scrutiny. Judge Barker found the law unconstitutional because: it lacked the narrow tailoring required in First Amendment expression cases; the imposition of the exorbitant fee for registering the affected businesses acts as a punitive measure in exercising free speech rights guaranteed by the First Amendment; it acts as an unconstitutional permit requirement on the exercise of the First Amendment; it failed to define the criminal offense with sufficient definiteness to avoid arbitrary and discriminatory enforcement; and it is written so broadly that it unconstitutionally burdens a vast amount of expression protected by the First Amendment.

There you have it. The law failed on every conceivable First Amendment ground. This is yet another example of the religious right putting our state legislature up to passing a state law to score political points with their constituency without regard to the constitutional infirmities of the legislation. It flew through both chambers of the General Assembly without hardly a dissenting vote, and Governor Daniels didn't bat an eye before signing it into law. This is precisely the reason we need judges on the bench who are aren't afraid to strike down laws which so clearly infringe upon our fundamental rights. The political branches of government too often carry out the wishes of the tyrannical majority.

A big hat tip to the Indiana Law Blog, which has more coverage here.