Bookstore Registration Statute Stopped
A law requiring persons selling sexually explicit materials to register with the Indiana Secretary of State and pay a $250 registration fee was struck down the day before it was scheduled to go into effect.
U.S. District Court Judge Sarah Evans Barker found that the statute was not narrowly tailored to meet a compelling government interest, imposed a content-based fee on First Amendment rights, and was overbroad and vague. The statute would require a person or corporation that intends to offer for sale or sells sexually explicit materials to register with the secretary of state and provide a detailed statement of the types of materials to be sold if that entity opened or changed location after June 30, 2008. It also required the payment of a $250 registration fee. The registration would be sent to local officials in the county where the material would be offered for sale.
“Clearly, a vast array of merchants and materials is implicated by the reach of this statute as written,” she wrote in her opinion. “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.'”
As to the $250 fee, the court found that the defendants “provided not a shred of evidence suggesting that the $250.00 fee is proportional to the amount of work required by the secretary of state’s office resulting from a filing, and we cannot fathom how ‘notification of local officials’ could justify such a fee. (As we have noted, the next-highest state-imposed fee-for the filing of documents such as articles of organization-is $90.00). In our judgment, the imposition of such an exorbitant fee is itself a punitive measure ‘collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment.'”
The plaintiffs included a bookstore that was planning to move in July that “sells literature with ‘strong sexual content’ which is ‘not appropriate for all children,’ such as D.H. Lawrence’s Lady Chatterley’s Lover and Vladimir Nabokov’s Lolita,” a cooperative bookstore that feared it would have to pay a registration fee for each employee and the Indianapolis Museum of Art that “features a collection of over 50,000 works and operates two retail stores and a website which offer gifts, books, and merchandise for sale-some of which contain nudity and/or may be considered ‘sexually explicit’ under the statute,” the court observed.
Big Hat Books et al. v. Prosecutors Adams, et al., No. 08 CV 596 SEB-TAB, issued July 1, 2008.