THE MEDIA COALITION INC.

E-MAIL: MEDIACOALITION@MEDIACOALITION.ORG

The members of The Media Coalition believe that Montana Senate Bill 399 threatens the distribution of First Amendment-protected material in Montana. Media Coalition members represent most of the publishers, booksellers, librarians, periodical wholesalers and distributors, recording, movie and video game manufacturers, and recording and video retailers in Montana and the rest of the United States.

S.B. 399 would require any business defined as a "sexually oriented business" to obtain an annual license at a cost of $1,000 per year. Also, the business could only hire employees with a "sexually oriented business employee license" and no employee could be under 18 years old. "Sexually oriented business" would be defined as any business that devotes 10 percent of stock, or devotes 10 percent of floor space or derives 10 percent of its income from stock that depicts or describes "specified anatomical areas or specified sexual acts." Violation of S.B. 399 is punishable by six months in jail, or $500 fine or both.

The legislature has the power to regulate the "secondary effects" of sexually oriented businesses but the Supreme Court has established limits on this power. The regulation must be designed to further an important or substantial government interest; The governmental interest must be unrelated to the suppression of speech; and The regulation must be narrowly tailored to further the government interest in preventing the unwanted secondary effects. City of Erie v. Pap’s A.M., __ U.S. __ (decided March 29, 2000); Barnes v. Glenn Theatre, Inc., 501 U.S. 560 (1991); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

It is very unlikely that S.B. 399 would meet this test. There is little reason to believe that imposing a license requirement on mainstream book, music and video stores will prevent unwanted secondary effects this bill seeks to reduce. However, S.B. 399 would have a serious chilling effect on many mainstream retailers. The extremely broad definition of "sexually oriented business" would impose the onerous licensing requirements on many, if not all, of these stores. Whether it is romance books, hit movies or country records, book, record and video stores all carry mainstream material that are descriptions or depictions of "certain anatomical areas or specific sexual acts." Many would drastically limit their inventory rather than get a license to do business as a "sexually oriented business"adult entertainment establishment" with both the administrative burdens and costs and the associated, negative connotations that go with the label. Alternatively, stores that did become licensed would likely lose customers unwilling to shop at a "sexually oriented business."