Indiana HB 1042, which requires anyone selling "sexually explicit" material to pay a licensing fee to the state, has a lot of Hoosiers hopping mad -- but it's not a new idea. It's an attack dog in sheep's clothing that has been through a lot of costume changes. For the last 20 years or so, bluenoses in American government have been trying to figure out how they can get business into censorship harness. In the past, their laws got swatted down by the U.S. Supreme Court for violating the First Amendment. But that trend may be changing for the worse.
Indiana Censorship Law: an attack dog in sheep's clothing
What amazes me most, about these legal battles over free speech, is the meager attention they get from the major media and the American public as a whole.
So far, the biggest efforts were federal attacks on the World Wide Web. In 1996 -- on President Clinton's watch -- Congress passed (and Clinton signed) the Communications Decency Act (CDA). This federal law criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. The feds insisted they were only targeting the kids' ability to view hard-core pornography online. They had the naive idea that kids could be kept away from porn if website owners would monitor access to their pages and require proof of age (like a credit card).
Being an ACLU member, I stepped forward to be one of the ACLU's plaintiffs, and testified against the CDA in federal district court in Philadelphia. As an author and book publisher (Wildcat Press), I recognize that I have a very personal stake in Internet free speech. The huge potential of overreach by this law was clear to me -- its power to stifle the flow of information and cultural expression in areas that are NOT porn but are regarded as dangerous by many conservatives. In 1997, the U.S. Supreme Court struck down the CDA as unconstitutional.
Undaunted, the Congressional bluenoses knee-jerked back with the Child Online Protection Act. COPA aims to criminalize the actual selling of anything "harmful to minors." This would certainly include LGBT booksellers and publishers who sell online. As a book industry professional, I also recognized that online bookselling is tied to bookselling in brick-and-mortar stores -- many distributors and chain stores (like Barnes & Noble and Baker & Taylor) -- have their feet in both marketplaces. Not to mention individual stores, like Powell's and many smaller stores that sell both online and through doorways on the street. The first major COPA prosecution of a bookseller would put a major chill on the book industry. All kinds of books that "might" be deemed questionable would instantly vanish from circulation. After all, who wants to risk being charged with a federal crime?
Once again the ACLU went on the offensive. I was a plaintiff in this one too. The COPA case went to the U.S. Supreme Court, who bounced it back to the federal district court for trial. In March 2007 the federal judge found COPA unconstitutional. However, the feds are appealing. If COPA is found unconstitutional, the bluenoses will just keep on trying to put together a package that the Supreme Court will be okay with.
On the state level, Indiana is not the first state to loose the attack dogs of censorship. To know more, the interested reader can go to the ACLU page on state laws . This page hasn't been updated in a while, but it still gives a horrific overview of the dozens of state laws since 1990. Few, if any, of these court cases have made the 6 o'clock news.
In my home state of Montana, even a county -- politically conservative Ravalli County -- passed a law in 1994 criminalizing the sale of "indecent" materials. The law was lobbied into place by a tiny one-man local organization, Montana Citizens for Decency Through Law. It took the Montana ACLU five years of fierce fighting to get the law axed in court. The law essentially gave local police the power to enter a home on suspicion and look for "harmful to minors" books, magazines and other materials. Its definition of "harmful" would have included books like Catcher in the Rye and classics like Romeo and Juliet.
The bluenoses will always pretend that they're nice little sheep who are just fighting to "project the children." They're "just targeting hard core porn." And I agree that porn is ugly stuff -- it victimizes and degrades women and children, and men too. But we already have laws for prosecuting pornographers.
Unfortunately these new laws are really intended to sink their fangs into a broader area of speech. There are a lot of subjects that the religious right consider "harmful" to minors -- including feminism, LGBT, sexual health, birth control, abortion, non-Christian spirituality, and non-traditional views of Christian history. The bible-mongers don't want kids to read any of this stuff. If they can remove it from the market for kids, perhaps they can get it off market for adults as well. Hence the efforts to write laws that can facilitate prosecution in the broadest direction.
Yeah, I wish that the average American would go less ga-ga over the tabloidy stuff, and go more angry on these laws that will determine what they can legally buy, or sell. That includes many LGBT people who don't seem to worry about censorship much. Hello, Bilerico's ability to discuss issues like gay marriage depends on having free speech.
The way the U.S. Supreme Court is veering right, they're going to be less and less on our side when it comes to speech.
P.S. I love and respect wolves, so I don't speak of "wolves in sheep's clothing." Among other things, wolves don't pretend to be something they're not.