771 F.2d 323 (7th Cir. 1985), aff’g 598 F. Supp. 1316 (S.D. Ind. 1984), aff’d mem., 475 U.S. 1001 (1986)

Summary:
In 1986, the United States Supreme Court summarily affirmed the decision of the United States Court of Appeals for the 7th Circuit that the definition of “pornography” in the Indianapolis ordinance violates the First Amendment because it is overbroad. The Circuit Court held that the ordinance goes far beyond material that is “obscene.” The ordinance “does not refer to the prurient interest, to offensiveness, or to the standards of the community,” which are part of the test for what is “obscene” as established by the Supreme Court in Miller v. California.

History:

Ordinance is adopted
In 1984, Indianapolis Mayor William Hudnut signed Indianapolis City-County General Ordinances Nos. 24 and 35 [4] into law. It characterized “pornography” as a practice that discriminates against women and defined it as “the graphic sexually explicit subordination of women, whether in pictures or in words” and depicts women in one of the six sexually explicit situations outlined in the ordinance.

The ordinance was originally written in 1983 for the City of Minneapolis by Andrea Dworkin and Catharine MacKinnon, two leaders of the feminist anti-pornography movement. (See Media Coalition’s 1993 report on Catharine MacKinnon.) The mayor of Minneapolis vetoed the ordinance twice, and in the interim, the Indianapolis City-County Council asked Dworkin and Mackinnon to rewrite their proposal for Indianapolis.

District Court suit filed
On May 1, 1984, Media Coalition filed a complaint in the United States District Court for the Southern District of Indiana, arguing that the ordinance “severely restricts the availability, display and distribution of constitutionally protected, non-obscene materials,” and it is not limited to unprotected speech, such as obscenity. The complaint also argued that the ordinance violates Supreme Court precedent that precludes banning of speech based on its content.

On November 19, 1984, U.S. District Judge Sarah Barker ruled [3] that the ordinance is unconstitutional because it is not limited to categories of unprotected speech. “The City-County Council, in defining and outlawing ‘pornography’ as the graphically depicted subordination of women, which it then characterizes as sex discrimination, has sought to regulate expression, that is, to suppress speech,” Barker wrote.

Circuit Court hears the appeal
The City of Indianapolis appealed the decision in the 7th Circuit. In August 27, 1985, Circuit Judge Frank Easterbrook upheld [2] the District Court’s decision that the ordinance was unconstitutional because it does not refer to the definition of “obscenity” in Miller v. California.

In his opinion, he also addressed the argument that “pornography” is low-value speech, writing, “True, pornography and obscenity have sex in common. But Indianapolis left out of its definition any reference to literary, artistic, political, or scientific value. … The Court sometimes balances the value of speech against the costs of its restriction, but it does this by category of speech and not by the content of particular works.”

Senior Circuit Judge Luther Swygert wrote a concurring opinion.

In 1986, the United States Supreme Court summarily affirmed the 7th Circuit’s decision.

Plaintiffs:
American Booksellers Association, Association for American Publishers, Freedom to Read Foundation, Council for Periodical Distributors Association, International Periodical Distributors Association, National Association of College Stores, Koch News Company, Omega Satellite Products, Video Shack and Kelly Bentley (Indianapolis resident)