Units of government throughout Indiana, including school districts and libraries, soon may face a barrage of lawsuits from across the country if someone believes they've organized, hosted or funded an "obscene performance."
The Republican-controlled House voted 72-20 Monday to give legal standing to any person, anywhere, to seek injunctive relief, attorney's fees, court costs and "other reasonable expenses" if they file a lawsuit claiming an Indiana governmental entity knowingly or intentionally organized or hosted an obscene performance, or used any taxpayer dollars to fund an obscene performance.
There's little chance anyone would prevail in such a lawsuit, in part because few performances can satisfy every prong of the statutory definition of obscene: "The average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex; the matter or performance depicts or describes, in a patently offensive way, sexual conduct; and the matter or performance, taken as a whole, lacks serious literary, artistic, political or scientific value."
Indeed, the sponsor of Senate Bill 326, state Rep. Andrew Ireland, R-Indianapolis, said he's unaware of any obscene performances occurring in Indiana that are sponsored by the state or local units of government.
He insisted, however, that granting anyone the authority to file a lawsuit will help ensure "public funds are never used to support the exploitation of children."
"This bill is an important step forward in our fight to protect the innocent and ensure that our legal system reflects the gravity of these crimes," Ireland said.
The leading opponent of the proposal, state Rep. Matt Pierce, D-Bloomington, said he has no serious problem with banning governmental entities from supporting obscene performances, since that's not happening now and he can't imagine any situation where it would.
"It seems odd to legislate against things that aren't happening and it suggests that our local officials are peddling smut, basically," Pierce said. "No local unit of government is going to be funding any obscene performance. It's not going to happen. So it's a nice message. But it's a do-nothing thing."
"More and more, this General Assembly is taking itself to an alternate reality where it legislates against problems that don't exist. We create a straw man and then we knock it down and we say, 'Look at us, we really solved that problem.' The problem never existed! But it appeals to somebody out there, so we do it."
Though Pierce also warned the enforcement mechanism included in the plan is ripe for abuse by easily offended individuals and interest groups located anywhere in the world who wouldn't even have to prove any kind of direct injury or harm before filing a lawsuit against an Indiana unit of government claiming something was obscene.
"Keep in mind, anybody involved in this supposed obscene performance that the local government might be funding, they can already be arrested and imprisoned under our current statute. We've got all the law in the world to address this issue. I would think the fear of going to prison would keep your local officials from wanting to go into the smut-peddling business. But we seem to think it's not enough," Pierce said.
"So we're going to have groups from all over the country, people organizing, looking around, and they're going to see a play, a movie, a performance, a poetry reading, something that they think is offensive, maybe because of just the nature of the characters being portrayed in that particular work. And they're going to grab on to this statute that we're about to put into law, and they're going to rush in and they're going to file a lawsuit."
Pierce said the odds of any litigants actually getting injunctive relief are practically zero, especially because the Supreme Court has roundly rejected prior restraint on free speech activities protected by the 1st Amendment to the U.S. Constitution.
But he said the proposal could have a chilling effect if governmental entities decide not to fund, organize or host any performances in response to it, and those that still do will have to defend themselves against any lawsuits.
"You're going to chew up time of some lawyers for those local units of government to deal with these marauding groups of people who are easily offended. And your local units of government, your constituents' tax dollars, are going to get chewed up fighting off these frivolous lawsuits," Pierce said. "This bill, now in its current form, is encouraging frivolous lawsuits. I thought we didn't like those in here."
In the end, the measure was easily approved by the House. It next goes back to the Republican-controlled Senate to see if lawmakers there accept Ireland's revisions or instead want to work toward a compromise acceptable to both chambers.
The bulk of the underlying legislation substitutes the term "child sex abuse material" everywhere "child pornography" appears in the Indiana Code to make clear the production and distribution of such content is connected to child abuse.
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