Page:Bedtelyon v. State (2022).pdf/9

 depict sexual conduct as defined by Indiana law) (citing Miller, 413 U.S. at 24). 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.

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.” Id. at 15. But matters that encourage deviate thinking are not necessarily obscene—which Bedtelyon’s probation officer also acknowledged when he testified, “I guess where I said obscene maybe doesn’t necessarily make it illegal.” Tr. Vol. II, p. 37. Here, the probation officer is right. The United States Supreme Court has limited regulation of obscene materials to those that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Miller, 413 U.S. at 27.

In defense of the revocation, the State invokes Fordyce v. State. 569 N.E.2d 357. In Fordyce, a bookseller was convicted of distributing obscene books that depicts or describes someone less than sixteen years old, a Class D felony at the time. Id. at 358. The Obscenity Statute has remained unchanged since before the facts of Fordyce. See Ind. Code § 35-49-2-1. These books detailed “various sexual