‘Obscene performances’ public funding ban moves forward

INDIANAPOLIS (INDIANA CAPITAL CHRONICLE) — A bill that left the Senate with near-universal support picked up a “barnacle in committee,” as one House Democrat put it last week, leaving the House on a 71-20 vote Monday.

The House additions widen the scope of the underlying bill beyond an effort to replace a criminal term throughout Indiana code to include a focus on obscene performances. 

As originally written, Senate Bill 326 would have replaced “child pornography” with “child sex abuse material,” acknowledging that children are being sexually abused in such images. But a House committee added a new provision: barring government entities from using public money to fund, organize or host “obscene performances.” 

A House floor amendment, which moved largely along party lines, also added a method of enforcement by allowing people to sue Indiana entities for alleged incidents. 

“Language shapes the way we understand and confront these issues and the term child pornography is not only inaccurate, it minimizes the horror of the crimes committed. Pornography implies a level of consent and children cannot consent,” said House sponsor Rep. Andrew Ireland. “… we’re taking an important step to save our Hoosier children.” 

The Indianapolis Republican said the language regarding obscene performances would ensure “that public funds are never used to support the exploitation of children.”

Defining something as obscene has to meet a high bar, known as the “Miller Test.” That work must be based on an average person’s reaction and consider the entire work, not just an isolated portion. 

But critics maintained that such performances aren’t happening, noting there are already penalties regardless of someone’s government affiliation. 

“More and more this General Assembly is taking itself to an alternate reality where it legislates against problems that don’t exist,” said Rep. Matt Pierce, D-Bloomington. “We create a strawman and then we knock it down and ‘Look at us! We really solved that problem!’

“The problem never existed. But it appeals to somebody out there, so we do it now.” 

Further discussion

Ireland didn’t cite specific instances of obscene performances using taxpayer dollars on Monday nor in his testimony last week when he introduced the penalty language. 

It also doesn’t limit such legal action to only Indiana residents, meaning that, according to Pierce, “any person in the universe can sue your local government when they’re offended by somebody and try to make an argument that it’s obscene.”

Pierce was one of the committee members to advance the bill, noting the high bar to meet the state’s obscenity standard, which he dubbed a “barnacle” on the House floor last week. In addition to the Miller test, a litigant would generally need to prove they have been harmed by obscene performances — a barrier meant to tamp down on frivolous lawsuits. 

But Pierce said the language eviscerates that and says “we don’t care if they’re harmed or not. We don’t care if they have a direct injury.”

Municipalities may still need to spend their dollars defending themselves from such accusations, which could include plays, poetry and drag shows. 

“Keep in mind, anybody involved in this supposed obscene performance that local government might be funding can already be arrested and imprisoned under our current (law),” Pierce continued. “I would think the fear of going to prison would keep local officials from going into the smut-peddling business.”

Ireland agreed with Pierce that such obscene performances “have never occurred and I hope never occur … in part, thanks to this bill.”

“This is nothing new under the sun,” concluded Ireland. 

The final vote tally split both parties, though only Ireland and Pierce spoke on the measure. It now goes to the Senate, which must vote to accept or reject the House amendments before the bill can advance.