Licensing Speech

By Wendy Kaminer      

        In the beginning, the press was licensed.  Licensing laws were common in 17th century England and especially stringent in the mid 1600’s when the Puritans were in power.  The end of the 17th century saw the end of licensing, and while that was hardly the end of censorship, it did mark a new beginning for free speech – to the apparent chagrin of Indiana politicians.
         Last month, Indiana Governor Mitch Daniels signed into law a registration regime for (what else?) sexually explicit material, meaning (for purposes of this law) material deemed harmful to minors.  On June 30, 2008, it will be a crime in Indiana for booksellers to stock any literature encompassed by this broad definition of non-obscene, sexually explicit speech unless they register first with the Secretary of State.  Registration involves notification of intent to sell sexually explicit material accompanied by a statement describing it.
         Ostensibly designed to control the spread of adult book and video stores, the law applies, by its own terms, to all bookstores.  The state is effectively “licensing bookstores based on the content of what they’re selling,” Jim Dale, executive director of the Great Lakes Booksellers Association remarked.  “The bill would, in effect, require mainstream bookstores to self-identify themselves as adult bookstores – and who would be willing to do that?”  Of course, as an alternative, retailers can purge their stocks and only carry material that might be considered appropriate for grade schoolers.

        Not surprisingly, booksellers and First Amendment advocates, including the Indiana ACLU, strongly oppose this bill, and it is likely to be challenged.  A registration and effective licensing scheme applying to constitutionally protected, non-obscene speech is constitutionally vulnerable, to say the least.  This censorious law should eventually be struck down (although it’s wise not to underestimate the inclination of judges as well as legislators, to censor adult speech in deference to the presumed sensibilities of minors.)  But Indiana's registration scheme is a reminder that liberty does indeed depend on eternal vigilance: This battle that seemed to end three centuries ago didn’t really end; it was simply on hiatus.

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