the Court of Appeals of Indiana

“ If sexual suggestion alone triggered the Obscenity Statute, censors could train their scopes on clearly constitutional expression, from great literature to soap operas to internet memes.
[13] Bedtelyon’s probation officer conceded that the type of sexual conduct forbidden by statute was left to the viewer’s imagination, describing the videos as largely “thought provoking” and “intended to ... provoke ... deviate thinking.” Tr. Vol. II, pp. 26, 28. Bedtelyon’s therapist testified that the videos were concerning because their content “feeds that deviate fantasy.” ”

“ We have found that Indiana’s obscenity statute is not broad enough to offend the First Amendment or Indiana’s Constitution. Fordyce, 569 N.E.2d at 359–60. But the United States Supreme Court has articulated a narrow path for constitutional obscenity restrictions. Miller, 413 U.S. at 24 (“ [W] e now confine the permissible scope of [obscenity] regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.”) ”

“ The Obscenity Statute has remained unchanged since before the facts of Fordyce. See Ind. Code § 35-49-2-1. These books detailed “various sexual activities” between a mother and son, the “sexual experiences” a mother, her teenage daughter, and her daughter’s friend have with two dogs, and a teenage boy who “shows up to engage in a sexual romp.” Fordyce, 569 N.E.2d at 358. The State argues that because the books in Fordyce were obscene, the videos Bedtelyon viewed are, too. ”