In the Indiana House on Thursday, Rep. Andrew Ireland, R-Indianapolis, presented an amendment to Senate Bill 326 that would hold government entities liable for organizing, hosting or funding an “obscene performance.”
The bill would replace the term “child pornography” with "child sex abuse material" in Indiana code and provide a defense for school employees, Department of Child Services employees and attorneys acting as legal counsel who report child sex abuse material to the authorities. Ireland is one of the bill’s House sponsors.
Representatives questioned the author and raised concerns about the addition of the amendment.
“This is a prior restraint bill, isn't it? This is a direct violation of the U.S. Constitution,” said Rep. Edward DeLaney, D-Indianapolis.
Prior restraint is "governmental prohibition imposed on expression before the expression actually takes place."
Ireland responded that obscenity is not protected by the First Amendment and that it’s government actions, not private speech.
“It could be a restraint in anticipation of government spend, so that’s government speech, not private speech,” said Ireland. “Even though it’s illegal, this does not stop the private individual from doing that activity.”
DeLaney said that the amendment is trying to stop a problem that doesn’t exist.
“We don’t have time for Medicaid or health care or higher education. We have time to pretend that we have government units that are funding obscene performances. Is that happening in any of your districts? It’s not happening in mine, and I’m in one of the ‘left crazy’ districts. And we’re not into it, OK? We just gotta stop this. We gotta get on task in this place,” DeLaney said.
Rep. Ryan Dvorak, D-South Bend, also expressed concerns about potential prior restraint by the amendment. Additionally, he noted that there is no instance of the government funding an obscene performance.
“That just doesn’t happen. What this amendment language actually does, I think as the author knows, is that it would put a prior restraint on hosting events,” said Dvorak. “That’s prohibited under the First Amendment of the United States Constitution”.
Rep. Matt Pierce, D-Bloomington, called the amendment’s purpose into question.
“Which governmental units have been hosting or funding obscene performances? … What problem are we solving?” asked Pierce.
Ireland responded by saying he hopes that it hasn’t happened and thinks that it never will happen but said that the goal of the amendment is to hold government entities to the same standard as individuals.
Pierce referenced Miller v. California, a 1973 ruling that set the standard for determining what was considered “obscene” in a court of law and would no longer be protected by the First Amendment.
“You can’t just say, ‘Oh, the scene in that movie, that's an offensive outrage, it’s obscene.’ You have to look at the entire thing. So, the idea that any performance is going to occur in any governmental entity that meets the definition of obscenity, it’s just never going to happen,” he said.
Pierce said that implementing the amendment could create a “chilling effect,” which is where free speech is restricted due to fear of backlash.
“This is what’s going to cost our local governments money. This is what’s going to start tying our communities in knots,” he said, raising concerns that citizens will sue for instances that don’t meet the legal standard for obscenity.
Ireland responded by agreeing that the bar for obscenity is high and the amendment intends to allow enforcement of the bill.
“If this never happens, this should be the easiest vote anybody takes here all year because at minimum, it does nothing,” he said.
The amendment prevailed with 64 yeas and 27 nays.