U.S. Judge Strikes Down Feminist “Pornography” Law in Indianapolis

May 25, 1985 — In 1984, the American Booksellers Association and the other members of Media Coalition, Inc., won the first round in one of the most celebrated censorship cases in many years when they succeeded in overturning an Indianapolis, Indiana, ordinance that would have drastically restricted the sale and rental of books, magazines and films that portrayed “the sexually explicit subordination of women.” In the columns of The New York Times, The Washington PostNewsweek and The New Republic, on “60 Minutes” and “The Phil Donahue Show,” people across the country debated the desirability of suppressing materials that have been protected by the First Amendment up to now.

The controversy began in late 1983 when two radical feminists, Andrew Dworkin and Catharine MacKinnon, persuaded the Minneapolis City Council to adopt a law making it a violation of a woman’s civil rights to publish or sell a written work — or to produce, distribute or show a motion picture — that presents the sexually explicit subordination of women “graphically depicted.” Dworkin and MacKinnon argued that the law was needed because this material, which is “pornography” according to their definition, is a primary cause of sexual discrimination and sexual violence.

From the beginning of the controversy, the American Booksellers Association and the other members of Media Coalition argued that this definition of “pornography,” which is far broader than the U.S. Supreme Court definition of “obscenity,” is so broad that many works with literary and artistic value might be construed as portraying the subordination of women — books like The Witches of EastwickThe Delta of VenusThe Other Side of MidnightScruplesThe Carpetbaggers and the James Bond novels, films like “Dressed to Kill,” “Ten,” “Star 80,” “Body Heat,” “Swept Away,” and “Last Tango in Paris.”

Minneapolis Mayor Donald Fraser vetoed the ordinance embodying the Dworkin/MacKinnon measure. However, Indianapolis Mayor William H. Hudnut signed a similar bill into law on May 1, 1984. By then, publicity about the proposal had caught the attention of city councils across the country, and at least a half dozen cities were likely candidates to follow Indianapolis’ lead.

Within hours of the enactment of the Indianapolis law, the American Booksellers Association and the other members of Media Coalition joined local parties in challenging the constitutionality of the measure. On July 30, Judge Sarah Evans Barker of the U.S. District Court in Indianapolis heard oral argument in the case.

Four months later, on November 19, Judge Barker ruled that the ordinance did not merit a full hearing in the course of a trial. Acting on the plaintiffs’ request for a summary judgment of the law, she declared it patently unconstitutional because it violated the First Amendment. Endorsing a position taken by many feminist opponents of the measure, Judge Barker went on to argue that the ordinance would harm the fight for sexual equality:

It ought to be remembered by defendants and all others who would support such a legislative initiative that, in terms of altering sociological patterns, much as alteration may be necessary and desirable, free speech, rather than being an enemy, is a long tested and worthy ally.

Judge Barker also ruled that the City of Indianapolis must pay the plaintiffs’ attorneys’ fees in the case, which will be a deterrent to those who might be tempted to pass similar laws despite their questionable constitutionality. The plaintiffs have filed fee applications for a total of $73,000 so far. The sweeping decision by Judge Barker and her award of fees have so far discouraged any other city council from enacting the Dworkin/MacKinnon measure.

The City of Indianapolis has appealed Judge Barker’s ruling to the U.S. Circuit Court of Appeals in Chicago. Oral argument has been scheduled for June 4, 1985.