American Booksellers Association, Inc., et al. v. Hudnut, 771 F. 2nd 323 (1985)

The feminist movement in the 1960s and 1970s in the United States and other countries raised anew issues of discrimination and violence against women. In America, Andrea Dworkin and Catherine MacKinnon played critical intellectual and political roles in developing and pressing for a radically new perspective of how to interpret sexually explicit portrayals of women in films, books, or other works. Their ideas ignited heated debates in the United States and Canada as well as in other countries. Their perspective sparked commentary by the media, informed conferences and commission reports, and led to the passage of city ordinances in Minneapolis and Indianapolis. Their ideas also shaped an opinion of the Supreme Court of Canada ruling (R. v. Butler, 1 S.C.R. 452, 1992) that Canadian governments could prohibit pornography that harmed or dehumanized women through sexual depictions of their subordination or humiliation.

The Indianapolis ordinance was challenged in federal court by a large coalition of groups that also filed numerous amicus curiae briefs; the legal battle attracted national attention. The ordinance defined ‘‘pornography’’ very differently from how Miller v. California, 413 U.S. 15 (1973), identified ‘‘obscenity.’’ Pornography, according to the ordinance, was ‘‘the graphic sexually explicit subordination of women, whether in pictures or in words’’ that included one or more of six different forms or portrayals of subordination. The inclusion of any of these depictions or performances in a work was sufficient to prohibit the work; the work as a whole or its artistic or scientific value was not considered. Appeals to prurient interest, patent offensiveness, or standards of the community, the three basic components of the Miller test, were ignored. The ordinance prohibited trafficking in pornography as defined by the ordinance, coercing others into pornographic performances, and forcing pornography onto others; anyone injured by someone who saw or read pornography had a right of action against the maker or seller of the pornographic material. Scienter or prior knowledge that the material was pornographic was generally not a defense.

The southern district court for Indiana in the Seventh Circuit Court of Appeals declared the ordinance was unconstitutional.Acircuit court panel, whose opinion was written by Easterbrook, a Reagan appointee, affirmed the lower court’s decision; the request for an en banc rehearing was denied. The lower court concluded the ordinance regulated speech and, accordingly, could be justified only by a Compelling State Interest in reducing sex discrimination, which Indianapolis did not establish. The trial judge ruled the ordinance vague, overbroad, and a prior restraint on speech.

For Easterbrook, the crux of the problem was that, given the ordinance’s definition of pornography, it effectively legislated into a law a particular viewpoint: ‘‘The ordinance discriminates on the ground of the content of the speech.’’ Depictions of women involved in sexual conduct as equals to men, regardless of the explicitness of the conduct, were lawful while portrayals of women enjoying humiliation or being submissive were unlawful without regard for the work’s literary, artistic, or political qualities. ‘‘This is thought control,’’ Easterbrook proclaimed. ‘‘It establishes an ‘approved’ view of women . . . Those who espouse the approved view may use sexual images; those who do not, may not.’’

Even if the premise underlying the ordinance is accepted—namely, that pornography is ‘‘an aspect of dominance’’ and that depictions of subordination tend to perpetuate subordination of women—‘‘this simply demonstrates the power of pornography as speech.’’ Easterbrook suggested various actions the city could take to save parts of the ordinance, but the fundamental problem, blunting these efforts, is that the law’s definition of ‘‘pornography’’ is ‘‘defective root and branch.’’

ROY B. FLEMMING

References and Further Reading

• Downs, Donald Alexander. The New Politics of Pornography. Chicago: University of Chicago Press, 1989
• Lacombe, Dany. Blue Politics: Pornography and the Law in the Age of Feminism. Toronto: University of Toronto Press, 1994
• MacKinnon, Catharine A. In Harm’s Way: The Pornography Civil Rights Hearings. Cambridge, MA: Harvard University Press, 1997

Cases and Statutes Cited

• American Booksellers Association, Inc. et al. v. Hudnut, 771 F. 2nd 323 (1985) 
• Miller v. California, 413 U.S. 15 (1973) 
• R. v. Butler, 1 S.C.R. 452 (1992)