And I'm looking at one right now.
It sells books and dvds which describe or represent nudity, sexual conduct, sexual excitement, or sado-masochistic abuse; which considered as a whole, appeal to the prurient interest in sex; which are patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for minors; and which considered as a whole, lack serious literary, artistic, political, or scientific value for minors.
Indiana recently passed a law that might require the average Borders, and certainly a number of independent bookstores, to register and pay a tax as sellers of pornography. The law requires that registration on the part of any book seller which offers material "harmful to minors," which under Indiana Code 35-49-2-2 is exactly what I defined above. That definition, by making children the focus of what's obscene, goes far beyond what Supreme Court First Amendment case law has allowed in the past.
The American Civil Liberties Union, as well as the Indianapolis Museum of Art, are suing to block the Indiana law from going into effect, on the grounds that by making what's appropriate for children the standard in determining who is porn merchant, the law sweeps up much material that does have serious literary, artistic, political, or scientific value for adults. The Borders across the street from my office, which has a big shelf of wanking material ("erotica") for the latte crowd in addition to books of some importance, as well as the Indianapolis Museum of Art, which may sell or display items of genuine artistic value, would face the choice of whether or not to brand themselves smut merchants and pay a tax for the privilege, or potentially face prosecution. That's not the only penalty the law imposes. The law would permit, indeed is designed to permit, local communities to zone businesses selling material harmful to minors to the wrong side of the tracks, where strip clubs and real adult stores are generally confined.
This law is a departure from ordinary vice and obscenity laws in that it makes what's harmful to children the standard. There are plenty of genuinely artistic movies that should never be shown to an 8 year old, such as A Clockwork Orange and Midnight Cowboy. Nor, for that matter, would I endorse an elementary school kid reading Henry Miller or D. H. Lawrence (assuming a very bright child with a high tolerance for tedious prose).
Now Indiana of course will argue that as applied, the law will never reach an art museum gift shop, or a brick and mortar bookstore. I agree, as no prosecutor would want to deal with that sort of embarrassment, not to mention the monster defense lawyers who would oppose such a prosecution.
But though independent bookstores are dying out, they're still the best place to find books of value in off the beaten path communities, where the competition is slim. And it's those communities where this sort of law is most likely to be enforced vigorously. If Borders is prosecuted, everyone will hear about it. But when the proprietors of Rural Hipster Books in Crossroads, Indiana are told they'll have to pay their defense attorney a $5,000 retainer up front for selling something mildly racy without a permit, no one will ever hear the sound of them going out of business.
Here's hoping the Indiana courts do the right thing by striking this law down.