American Booksellers Association, Inc. v. Hudnut

United States Court of Appeals for the Seventh Circuit · 1985 · Constitutional Law

771 F.2d 323 (7th Cir. 1985)

Updated July 31, 2026

conlawFirst Amendmentfreedom of speechcontent discriminationviewpoint discriminationcontent-based regulationpornography ordinanceobscenity distinction

Facts

Indianapolis enacted an ordinance defining "pornography" as the graphic sexually explicit subordination of women, including specified depictions such as women enjoying pain, humiliation, rape, mutilation, penetration by objects or animals, degradation, or sexual submission. The ordinance did not use the constitutional obscenity criteria of prurient interest, offensiveness, community standards, or evaluation of the work as a whole, and it applied regardless of literary, artistic, political, or scientific value. It created prohibitions on trafficking in pornography, coercing pornographic performances, forcing pornography on persons, and liability for assaults or injuries directly caused by specific pornography. Booksellers, publishers, distributors, and readers alleged that the ordinance threatened a wide range of expressive works and chilled protected speech.

Issue

Whether Indianapolis may, consistent with the First Amendment, prohibit and create civil remedies against sexually explicit expression defined as the subordination of women. Also, whether any portions of the ordinance could be saved by severance after the definition of pornography was found unconstitutional.

Rule

The First Amendment forbids the government from declaring one perspective correct and suppressing opposing views. A law regulating sexually explicit expression is unconstitutional when it turns on the viewpoint expressed rather than on unprotected obscenity or viewpoint-neutral regulation of conduct, and a court may not save such a law by rewriting it rather than merely excising invalid parts.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The city council of Madison, Wisconsin enacts an ordinance banning the sale of any sexually explicit novel or film that portrays women as enjoying domination, humiliation, or submission. The ordinance expressly permits equally explicit works that depict sexual relationships as mutually respectful and equal.

If challenged under the First Amendment, how is a court most likely to rule?

Explanation. The governing rule is that government may not suppress protected expression by selecting disfavored viewpoints. This ordinance permits sexually explicit speech expressing an approved perspective while banning sexually explicit speech expressing a disapproved one. Even if the city believes the banned depictions cause social harm, that shows the material's power as speech and does not justify viewpoint-based suppression. (Derived from American Booksellers Association, Inc. v. Hudnut (1985).)