Indiana Legislature: NO, YOU CAN’T HAS SEXUALLY EXPLICIT MATERIALS. NOT YOURS!

Heads up: This is a news item followed by decently lengthy musings on American legal, political and cultural attitudes towards sex. If you’re interested in the news, and only the news, don’t bother expanding the text.

Thanks to many readers who alerted us to the fact that many booksellers in Indiana got their dudgeons in high gear after the Governor signed HEA 1042 into law.

The bill requires that any person (i.e., any “human being, corporation, limited liability company, partnership, unincorporated association, or governmental entity”) intending to sell “sexually explicit materials” pay a $250 filing fee with the Secretary of State, who then registers that person as a vendor of sexually explicit material and informs the appropriate county officials (usually the local zoning board). The law kicks in July 1, 2008; businesses in existence June 30 and prior do not need to register themselves unless they move.

Of especial interest are some of the definitions used by the legislation:

Chapter 16.4. Sexually Explicit Materials
Sec. 1. As used in this chapter, “person” has the meaning set forth in IC 35-41-1-22.
Sec. 2. (a) 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.

“Wait a second,” I hear you cry; “Harmful to minors? Even if not intended to be used by or offered to a minor? What, pray tell, does IC 35-59-2-2 define?”

Wonder no longer, gentle reader. Here’s the skinny:

IC 35-49-2-2
Matter or performance harmful to minors
Sec. 2. A matter or performance is harmful to minors for purposes of this article if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic 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 S&M provision made me snort hard as well, but I’ll handle that in the commentary.)

The American Booksellers Foundation for Free Expression is gearing up to issue a legal challenge; many booksellers seem to agree that it’s overbroad and unconstitutional.

You know what? I blame the founding fathers. If only they’d penned an amendment to the Constitution that said “A well satisfied Populace, being necessary to the happiness of a free State, the right of the People to keep and bear Items to Assist in Orgasms, shall not be infringed,” we wouldn’t have to fight so goddamn hard all the goddamn time for access to our toys and books.

Second Amendment fangirls and boys: Simmer down. I haven’t formed a strong leaning one way or another on gun control. It’s my smart-ass way to make a point. It’s one that’s been made frequently, and one that’s repeated so often, I’m a bit tired of hearing it, even though it’s true: America doesn’t have too much of a problem with guns and dealing death, but bring out the dildoes and OH MY GOD SOCIETY IS OBVIOUSLY FALLING APART BECAUSE OH MY STARS AND GARTERS PEOPLE WANT TO TOUCH THEMSELVES THAT’S JUST DISGUSTING. This time, however, I want to tackle it from another standpoint; instead of focusing on the apparent ease that mainstream America has in accepting the destruction of the body vs. its equally strong discomfort with accepting that people crave sexual pleasure (including minors and kinky freaks—to the surprise and dismay of the Indiana Legislature, is the feeling I get from reading the bill), I want to examine why sexually-oriented material is targeted so persistently and parse some of its ramifications.

Also keep in mind that it’s well past 2 a.m., and I’ve been fighting off the Mongolian Death Flu for the past week. Coherency is going to be a bonus, not something to be expected.

As far as I know, no other types of speech are as persistently and successfully targeted for legislation as obscenity. Passing off creationist bunkum as legitimate science? Sure, why not. Publishing thinly-veiled racist propaganda? Indeed, why the hell not. Books with instructions on how to make bombs—unsound instructions that could blow off a limb or two, even? Hell yes. Hey, people are assholes, and we have minimal interest in legislating assholishness by infringing on free speech rights.

Once we start literally getting into assholes, however—that, apparently, is a silicon toy of another nature entirely. Once there’s talk about “arousing prurient interest” and “protecting the interest of minors,” politicians are gung-ho about policing neighborhood stores for Justine, stroke books and Rabbit Habits.

The traditional argument goes that it’s the community’s right to create an environment that they want, and that it’s only fair for members to adhere to community standards. This, however, doesn’t fly for many other things. I have not heard of community standards being invoked for other things that would presumably affect other people’s health and life choices, like, say, gun ownership (which is Constitutionally protected), or body weight (which isn’t), much less community standards regarding speech in other regards. Thing is, we don’t see serious attempts to come up with laws that define when a book is too violent, or too racist, or too misogynistic to be acceptable—not even using the flimsy “lacks serious literary, artistic, political, or scientific value” guideline. We do see these attempts for sexually-related matters.

I can understand legislating sexual misconduct, but why have governments tried so hard to legislate consensual sexual activity? Does it make sense? Is it effective? Is it even Constitutional, especially if you believe in privacy rights? Starting with Griswold v. Connecticut (a case involving the outlawing of contraceptives), in which the court inferred privacy rights from the “penumbras” of the First, Third, Fourth and Fourteenth Amendments, stretching to Lawrence v. Texas (this will forever remain The Buttsecks Case in my mind and heart), which invoked the Fourteenth Amendment right to due process, the highest levels of the courts have ruled that too much of a hands-on approach to people’s hands-on approaches isn’t kosher. Most recently, in Reliable Consultants, Inc. v. Earle, the Fifth Circuit Court of Appeals decided to overturn the Texas sex toy ban, citing Lawrence v. Texas:

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

It follows that the Texas statute cannot define sexual devices themselves as obscene and prohibit their sale.41 Nothing here said or held protects the public display of material that is obscene as defined by the Supreme Court—i.e., the language in Section 43.21(a)(1) of this statute, excluding the words in the provision defining as obscene any device designed or marketed for sexual stimulation. Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution.

41 See State v. Brenan, 772 So.2d 64, 74 (La.2000) (holding that “[t]he legislature cannot make a device automatically obscene merely through the use of labels”); State v. Hughes, 246 Kan. 607, 792 P.2d 1023, 1031 (Kan.1990) (“The legislature may not declare a device obscene merely because it relates to human sexual activity.”)

That’s why HEA 1042 came as a surprise to me. The two parts that raised my eyebrows the hardest were the provisions to protect minors, and the specific focus on S&M paraphernalia.

Where have these people been? Dear lord. Prurient sexual interest of minors? Sadism and masochism? I can imagine the headlines now:

TEENAGERS LOVE BEATING OFF. NEWS AT 11!

PEOPLE APPARENTLY ENJOY SEXUALIZED PAIN, BONDAGE AND RITUALIZED EXERCISES OF SEXUAL POWER. IN OTHER NEWS, THE MARQUIS DE SADE, VENUS IN FURS AND STORY OF O TOTALLY DO NOT EXIST IN THIS UNIVERSE.

I’m big into not reading too much into intentionality, but it’s hard for me to read this piece of legislation and not see a governing body scrabbling hard for an excuse—any excuse—to legislate sexual mores. I mean, shit, Lawrence v. Texas said buttsex between men was OK, and if that doesn’t spell doom in a hairy donut, I don’t know what does. What angles are left? I doubt the legislature is nearly hip enough to know about furries, so they turned to the two that still manage to get a rise from people: kids and S&M. Keep in mind that this is all rampant speculation on my part—I haven’t checked the legislative history or debates surrounding this particular bill—but I can’t help but think those are the only reasons these two specific provisions were included.

Ultimately, what strikes me about this bill—as it does all the other bills that attempt to legislate consensual sexual conduct—is its futility. Its definition of “sexually explicit material” is so broad that it easily runs afoul of First Amendment concerns, and the folderol regarding minors and S&M? You can attempt to legislate kids masturbating furiously to their parents’ porn, or adults masturbating furiously to porn by pretending you’re attempting to legislate kids masturbating furiously to their parents’ porn, or people whipping each other to get off. You can try all you want, but not only are these sorts of measures ineffective and well-nigh impossible to enforce effectively, it’s really not the place of the government to do so—and the tide of judicial opinion seems to be in agreement with me on this.

Categorized:

Random Musings

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  1. 1
    redheaded englishwoman says:

    When they immediately go to the “Think of the Childruns!” argument, you know they’re on shaky ground.

    I am always bemused by efforts to legislate sex – heck, they can’t even control drug use – what makes them think a law will do anything except ensure that more kids will be interested in it because in addition to being fun, it’s now illegal?  Way to piss off your parents.

    I try very hard not to just automatically think that 90% of the country’s problems would be fixed if the legislature wasn’t run by puritans, but when stuff like this comes along, it’s hard (uh, yeah).

    It does, however, make it even more delicious when lawmakers are caught doing the very thing they rail so publicly against – the long line of religious and secular sexual hypocrites is alternatively amusing and maddening.

  2. 2
    DS says:

    I was listening to Justice Talking on NPR Tuesday and the topic was Pornography and the First Amendment with a lot about the attempts of the Federal governement to legislate protection of children on the internet.  Anyone who is interested can listen to the whole program at http://www.justicetalking.org/viewprogram.asp?progID=659

    I guess this must have something to do with suburbanization in Indiana or something.  All kids on farms have to do is go out and enjoy the show put on every year by the animals.  The squirrels have been particularly randy this year, as a friend observed, who had been watching them doing it on the courthouse lawn.

  3. 3
    Diana Hunter says:

    Sounds like a great opportunity to gear up the promotional machine:

    “Diana Hunter Banned in Indiana! Read her books to find out what all the fuss is about!”

    (grinning, rubbing hands together…and plotting)

  4. 4
    Adler says:

    No points, Indiana.  No points for you.

  5. 5
    Bernita says:

    Sounds like a Porn Tax.

  6. 6
    Tera Kleinfelter says:

    I live in Indiana and this is first I’ve heard of this law. It’s ridiculous. But, what you have to understand about Indiana is that guns, pipe bombs, racism, the KKK (yes, we have a HIGH KKK population here, thank you Joe Huffington and DC Stephenson), gangs, all of that is okay, but God Bless It, there will be no sex…even though my hometown of South Bend now has a specific school for pregnant teenage girls and unwed mothers, to help them finish school. And the school is full! But, we have to protect a minor’s innocence. It’s Indiana, that’s just the way it is here. And for every dumb law there is here (by the way, oral sex is illegal in Indiana) there are tons of people who have found a loophole and are working around it. Trust me, even here in Lafayette we have our fair share of “shops”. :)

  7. 7
    Angelina says:

    Once again, another proud reason to be a Hoosier.

    What kills me though is I have lived here most of my life and I didnt know that S&M was so prevalently practised here taht we needed a law to protect minors from it. WTF! Totally thinking about sending a copy of Decadent to my rep Tom Dermody so he knows “we is just tryin to save lives!!!”

  8. 8
    Carrie Lofty says:

    Hey, Hoosiers! United in dismay! I grew up in Mishawaka. I’ve since escaped to Wisconsin, which seems like a liberal hotbed by comparison. Everytime I go home to visit my folks and check out their license plates, I get a little facial tic. I’ll have to tell my mom she might not be able to buy my book come December, but first I’ll have to tell her that, well, it’s a sexytype book. Thanks for that, Mitch Daniels!

  9. 9
    RStewie says:

    WTF!!  I’m in ur ass, savin’ ur life, and you slap me with a $250 tax!?!?!

    OMG, Angelina, you rock!

  10. 10
    Kassiana says:

    Got it. Racism good, stupid legislative maneuvers no ethical police department would enforce good, sex bad.

    Stupid right-wing dickwads.

  11. 11
    Meg says:

    Even more reason to make me glad that I have moved from Fort Wayne and now live on the East Coast.

    Way to go, Midwest, way to go.

  12. 12
    sherry thomas says:

    Frankly, this makes me very interested in the private sexual habits and mores of the Indiana legislators.

    Because history and current affairs clearly show that those who are most interested in legislating other people’s sex are often not so kosher practitioners themselves.

    I say a dildo raid on every last one of them.  I’ll be surprised if we don’t net enough material to make a porn shop owner blush.

  13. 13
    Nora Roberts says:

    So, are they going to have the Sex Police going around, opening bedroom doors to make sure people are obeying the law? Will Hoosiers have to smuggle their sex toys and porn over the Ohio border?

  14. 14
    kaetchen says:

    Sigh. Another Hoosier expatriate here (Valparaiso, to be exact). Every time I go home to visit the family left there, I’m struck by how different the cultures are – I mean, the fact that I had my tummy pierced when I was 25 was shocking!

    For some reason, the idiots who are writing these laws don’t seem to get that ‘inappropriate for children’ doesn’t automatically equal ‘evil work of Satan.’ For example: I dance burlesque. My two kids know that, and yes, they know what burlesque is. Because healthy sex behavior isn’t bad. Do they go see my shows? Of course not, because that isn’t appropriate for a 7 and a 10 year old.

    Doesn’t seem like rocket science to me. But what do I know – I’m just a hick from Hoosierville…

  15. 15

    Now I wish I lived in Indiana so I can get a job as a sex police officer. Can you imagine the great stuff they’d find for “research”?

  16. 16
    darlynne says:

    As Umberto Eco pointed out in one of his books that I barely understood, one can examine the laws of any culture to get an idea of what people were doing at the time. If there’s a law against sodomizing one’s camel, that’s because people were sodomizing their camels.

    Although I don’t think the answers to complicated questions are easy, they are sometimes clear: we are afraid of sex. Guns don’t scare us nearly as much as does the power of sex. Violence on television isn’t real, but apparently sex always is. That’s why you’ll see outraged people objecting when characters on TV engage in sexual activity, even though the bloody chaos prior to that didn’t produce a blink. We can explain away the one, perhaps, but the other produces too many issues about which we’re uncomfortable. We have never learned and my well of optimism, she runs dry.

    BTW, I do not advocate sodomizing one’s camel. This was for illustrative purposes only and no animals were harmed in this post.

  17. 17
    heidio says:

    Um, “sexually explicit materials”?  Does that mean that they are banning the old testament from the christian bible?  just curious.

  18. 18

    Gee, it’s nice to know that unlike Florida, Indiana must not be going through a financial crisis of massive proportions in 2008, if they can focus on this in their legislature instead of working to keep kids fed and old people housed.

    And too, thanks for the reminder that I need to renew my ACLU membership.

  19. 19

    Egads. As a mother of three, I still cringe anytime I see the “But think of the children!” argument. It’s my job, not the state’s, to determine what is and is not appropriate for my children. (I use the term “state” to mean the government in general, btw.) I am more concerned about my children growing up in an environment that promotes censorship and restricts freedom of expression than I am one that, omg, promotes the natural human act that is the reason for our existence in the first place.

  20. 20

    Um…so I do want to go off on a bit of a tangent – community standards are regularly invoked in discussions of body weight.  They call those community standards BMI – and now they are finding that those people that they have defined by this standard as “overweight” actually have the lowest mortality rate on the scale.  But still no one questions this measure as a standard for weight.

    I actually see a lot of parallels between the way that people try to legislate sexuality and the way that people try to legislate weight.  It is all about controlling appetites and the sinful body.

    As a fat masochistic romance reader, I’m having none of it.

  21. 21
    Tina C. says:

    Will Hoosiers have to smuggle their sex toys and porn over the Ohio border?

    Well, a good portion of the southern part of the state will probably just drive over to Kentucky.  Louisville is just on the other side of the bridge from New Albany and I’m pretty sure we have a few places to pick up your sexually explicit material there.

    I’m curious, though, as to who will get to decide what constitutes as “sexually explicit” and what doesn’t.

    (1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
    (2) considered as a whole, it appeals to the prurient interest in sex of minors;

    Doesn’t that describe everything from Emma Holly to the Sports Illustrated Swimsuit issue?  If you carry anything in your store other than Precious Moments figurines and children’s ABCs books, will you be required to cough up a $250 fee?  Sounds like the legislature might be trying to kill two birds with one stone—point a disapproving finger at that SMUT and fill the state coffers to overflowing with an enormously broad definition of “sexually explicit material”.

    appeared14—Hmmmm, other than to say, “How appropo!”, I’m just going to leave that one alone.

  22. 22
    rebyj says:

    Gawd, states regulating sex.

    I remember when I got married in 1983 oral sex was illegal in the state we lived in … Georgia.

    Picture a 19 yr old me screeching
    “It’s against the LAW! It’s against the LAW! ”  when he’d grab the back of my head and try to push it into his lap when he was driving. 

    Lock me up, I’m a bad bad criminal.
    We never did do the s&m thing though ,prolly cuz it was legal in Georgia and therefore not a rebellious temptation LOL

  23. 23
    cofax says:

    who then registers that person as a vendor of sexually explicit material and informs the appropriate county officials (usually the local zoning board). the law kicks in July 1, 2008; businesses in existence June 30 and prior do not need to register themselves unless they move.

    Huh.  So all those dangerous novels by Nora Roberts and Laurell K. Hamilton will be identified as sexually explicit materials?  And your friendly local bookstore that wants to move to a larger space, or the new Borders down the way, are going to be classified under the city zoning code as Adult Bookshops and forced to put paper over their windows?

    Yeah, that’ll fly.

    That’s the hazard I see: not so much that they want to regulate sex (because this is America: when we’re not using sex and glorifying it, we’re regulating it), but that they’re using the zoning code to do it, and the net is so broad that businesses which are otherwise acceptable are going to be caught in it.

    But hey—all it’ll really take to knock this down will be one instance where Borders refuses to be classified as an Adult Bookstore, and the state loses millions in sales taxes.  Heh.

  24. 24
    morgan saylor jones says:

    What an excellent rant, Candy. Thank you.

    Since the law exempts “communications service providers” (defined here) it’s just going to drive horny teens away from bricks and mortar purveyors of Sports Illustrated’s swimsuit issue and back to their computer screens.

    Like that’s not already happening.

    We can only hope that the Indiana citizenry, now alerted to what their elected representatives have been up to, will take matters into their own hands (so to speak) and do to this law what the good people of South Dakota did to their abortion law.

  25. 25
    michelle says:

    All this talk of sneaking your porn over state lines makes me think of Smokey and the Bandit. “Truckin’ dildos to South Bend? Why, that’s bootleggin’!”

    I am also thinking what a great erotica story someone could write about the Indiana Sex Police. HAWT.

    All this is to distract me from my blinding rage. It’s almost working!

  26. 26
    Leslie says:

    Oklahoma tried that a couple of years ago. It was killed “In Committee”. That would be the legal equivelent of a dark alley with blunt force involved.

    So…does that mean that the Song of Solomon will require Bible sellers to get licenses?

  27. 27
    Estelle Chauvelin says:

    Hmm.  Since I go to library school in Indiana, I really wish I was in an intellectual freedom class right now.  I bet there will be some interesting discussions this week.

    Since my Intellectual Freedom seminar was last summer instead, I’ve forgotten the name of the case, but there was already one re: the Internet that ruled that you cannot keep adults from accessing information that is considered obscene for minors.

  28. 28
    annanickle says:

    “Hi bitches, my name is Anna and I’m a recovering Hoosier from Crown Point, in Da Region (for non-Hoosiers this is the Illi-Michi-ana area.”

    “Hi Anna,” They chorus back.

    Candy said-

    This time, however, I want to tackle it from another standpoint; instead of focusing on the apparent ease that mainstream America has in accepting the destruction of the body vs.[ it’s equally strong discomfort with accepting that people crave sexual pleasure ](including minors and kinky freaks—to the surprise and dismay of the Indiana Legislature, is the feeling I get from reading the bill), [ I want to examine why sexually-oriented material is targeted so persistently and parse some of its ramifications].

    On a purely intellectual/theoretical vein (blame it on Lit Theory) in response to the bold sections:

    Michel Foucault has some interesting ideas about repression and expression in his History of Sexuality, specifically his “Repressive Hypothesis” which goes along the lines that we aren’t actually repressed when it comes to sex and that if we look around sexual discourse has been multiplying like bunnies…
     
      “There has been a steady proliferation of discourses concerned with sex…[and]… more important [is] the multiplication of discourses concerning sex in the field of exercise of power its self (well duh-my comment); an institutional incitement to speak about it…a determination on the part of agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail” (18).

    Long winded dude is saying The Man is in all actual fact really “keeping us down” through, not repression, but how we talk about sex.

    In this case having the sex discourse be about written “illicit,” er, discourse. Control the discourse control the power. If the institutions name something as “porn” or “harmful” then it is being redefined in terms that perpetuate the “repression” idea, which is the biggest red-herring walking… “Look over here, everyone, while we really do crap-ass shit to control and repress you over here.” And nothing distracts better then da sex talk and how we will someday get liberated from our repression of/from it. Hey, anyone check to see what else has been going down in the Indiana State Legislature lately…any financial issues to cover up…any hard working, God fearing people getting screwed in ways that are now banned?

    Theory aside, I agree with Candy, legally this just doesn’t swing right… with an added mutter of, “Bunch of ass-jacks if ever there was.”

    Disclaimer: Reading Foucault may make the reader depressed, paranoid, and overly analytical. Application of ideas and conclusions may be expressed inappropriately. Feelings of isolation and disillusionment may occur. In extreme cases family and friends may avoid you. If any of these things occur, stop reading Foucault immediately, contact your local porn/book store and immerse yourself in romances full of chapters containing sex acts that are illegal in the state of Indiana.

  29. 29
    Kaite says:

    As a current Indiana inmate (and sure to be picked up and locked away for centuries if they ever raid my linen drawer, OMG), I can honestly say—not surprising.

    Also re: repressing sex to distract from some other naughtiness going on—also not surprising. Gov. Daniels is facing a lot of trouble for property tax issues (which got our city’s mayor defeated in the last election, only for people to find—surprise!—he had jack-all to do with it, and that’s still a massive bugger up going on) that are about to derail his finding new companies to move to Indianapolis campaigns, so it’s no wonder he wants his right hand flourishes to hide what the left is doing. There’s sure to be something going on over there that people would light the torches and gather the pitchforks over if they knew about it.

    God, I hate this state. I can’t imagine anywhere else that’s really all that much better, really, unless we form a 51st state that believes in free love, open nudity and zero tolerance for hand guns/bombs/droopy pants on teenage boys. I’ll be the first governor. Anyone with me?

  30. 30
    Candy says:

    Spinterwitch: Um…so I do want to go off on a bit of a tangent – community standards are regularly invoked in discussions of body weight.  They call those community standards BMI – and now they are finding that those people that they have defined by this standard as “overweight” actually have the lowest mortality rate on the scale.  But still no one questions this measure as a standard for weight.

    I actually see a lot of parallels between the way that people try to legislate sexuality and the way that people try to legislate weight.

    Spinsterwitch: I agree that the BMI is an unusually poor indicator of healthy mass—and if I’m not mistaken, most BMI charts acknowledge that if you’re unusually muscular, the charts will not be an accurate measure. Most health professionals I know (from doctors to physical therapists to personal trainers) use BMI only as a very, very rough guide and starting point. That said, I don’t know of any actual legislation regarding body weight—as far as I know, it’s not illegal for somebody to be clinically obese the way it is for somebody to sell “sexually explicit material” and not pay the $250 fee after June 30 in IN.

    Annanickle: EXCELLENT point to make. I have a love-hate relationship with Foucault, yes I do, but the obfuscatory bastard is often on to something.

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