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.
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:
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 labelsâ€); 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.â€)
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.