Booksellers Urge Veto of Unconstitutional Indiana Bill

March 13, 2008

The American Booksellers Foundation for Free Expression (ABFFE), the Great Lakes Booksellers Association (GLBA), 15 independent Indiana booksellers, and Borders Books and Music are urging Indiana Gov. Mitch Daniels to veto a bill that would require bookstores to register with the state if they intend to sell "sexually explicit materials." In a letter to the governor, they declared that House Bill 1042 "violates the First Amendment rights of Indiana booksellers and their customers."

"It is not surprising that Indiana booksellers are strongly protesting this bill," said ABFFE President Chris Finan. "They consider it anathema to have to register with the government in order to sell books. If Gov. Daniels signs this bill, it will be challenged as a clear violation of the First Amendment."

While most states, including Indiana, have statutes making it illegal to sell "harmful" materials to minors, H.B. 1042 would go beyond these laws by requiring booksellers who intend to sell "explicit" books to register with the secretary of state and provide a statement detailing the types of books to be sold. The secretary of state would then identify those stores to local government officials and zoning boards. "Sexually explicit material" is defined as any product that is "harmful to minors" under existing law. There is a $250 registration fee to register, and failure to register is a misdemeanor.

"The legislators claim to be aiming at the adult book industry in this legislation, but, as is often the case, they really overshoot the mark with their broad language," said GLBA Executive Director Jim Dana. "It's really onerous to think that any merchant who sells 'sexually explicit material' has to register with the secretary of state -- in effect licensing bookstores based on the content of what they're selling. That's a power that should never be given to the government in a free society."

Aside from the First Amendment considerations, Dana noted, "The bill poses practical problems -- how to determine exactly where the line is in any given work that would require a bookstore to register and then the problem of actually checking all your stock to see which 'products' fit the definition. The bill would, in effect, require mainstream bookstores to self-identify themselves as adult bookstores -- and who would be willing to do that? Either that, or they would stop carrying any titles that might conceivably fall under the definition, whether they were novels, health and sex education, or art."

The letter to the governor contends that such a bill would have a "chilling effect" on the sale of books and magazines protected by the First Amendment. "The definition of 'sexually explicit materials' is vague, potentially encompassing mainstream novels and other artistic works with sexual content as well as books that provide information about sexuality and health," it asserts. "Some booksellers will be reluctant to identify themselves as sellers of 'explicit' books and magazines and will choose not to carry them, depriving adults and older minors of works they have a First Amendment right to purchase."

The letter acknowledged, "Some regulation of bookstores that primarily disseminate sexually explicit material is a legitimate government function," but insists that "such restrictions must not be allowed to infringe on the constitutional rights of mainstream booksellers and their customers."

The groups explained that although U.S. booksellers are in a "fierce competition," there is collective agreement that "it is a critical part of our role as booksellers to defend the right of our customers to have access to all books, magazines, recordings, and other materials that are protected by the First Amendment."

Independent booksellers who have signed the letter to Gov. Daniels are Terry Whittaker of Viewpoint Books in Columbus; Sharonda Youngblood of Youngblood's Books in Fishers; James M. Martin of Von's Bookshop in West Lafayette; Jim Huang of The Mystery Company in Carmel; Chris Fairchild of The Bookshelf in Batesville; Elizabeth Houghton Barden of Big Hat Books in Indianapolis; Cynthia Compton of 4 Kids Books & Toys in Fishers; Jennifer and Shannon Emigh of Bookworm Inc. in Plymouth; Susan Danner of Danner's Books-Gifts-Yarns in Muncie; Ernie Ford of Fine Print Book Store in Greencastle; Linda Smith of Books Alive in Chesterton; Richard Sovine of Next Page Bookstores & More in Decatur; Summer Moser of Summer's Stories in Kendalville; Jane Shasserre of The Wild in Noblesvillle; and Tammara Tracy of Out Word Bound in Indianapolis. --Karen Schechner

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