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American Booksellers Association, Inc. v. Hudnut

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

Constitutional LawFirst AmendmentFreedom of SpeechContent DiscriminationViewpoint DiscriminationFirst Amendmentviewpoint discriminationcontent-based regulation

Facts

Indianapolis enacted an ordinance defining "pornography" as the graphic sexually explicit subordination of women, including specified depictions such as women enjoying pain, rape, humiliation, injury, domination, servility, or submission. The ordinance created civil-rights-style prohibitions and remedies for trafficking in pornography, coercing persons into pornographic performances, forcing pornography on persons, and assaults directly caused by specific pornography. Unlike obscenity law, the ordinance did not require appeal to prurient interest, offensiveness under community standards, evaluation of the work as a whole, or lack of literary, artistic, political, or scientific value. Plaintiffs who made, sold, distributed, or consumed a wide range of books, magazines, and films sued, alleging that the ordinance burdened protected expression.

Issue

Whether Indianapolis may, consistent with the First Amendment, prohibit and impose civil liability for sexually explicit expression defined as the subordination of women in specified ways. Also, whether any part 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 orthodox and suppressing expression because of the viewpoint it conveys. A law regulating sexually explicit expression is unconstitutional when it selects speech for punishment based on whether it portrays women in an approved or disapproved way, rather than using the constitutionally recognized obscenity standard or a viewpoint-neutral rule tied to unprotected conduct.

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

The city council in Columbus, Ohio adopts an ordinance creating civil liability for distributing any sexually explicit novel or film that portrays women as enjoying domination, humiliation, or submission. The ordinance expressly states that equally explicit works portraying mutual respect and equality remain lawful.

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

Explanation. The controlling rule is that government may not suppress protected expression because of its message or viewpoint. A law that permits sexually explicit depictions of equality but bans sexually explicit depictions of female subordination selects speech based on perspective, which is impermissible viewpoint discrimination. The case rejects the idea that civil labeling or evidence of harmful social effects saves such a law. (Derived from American Booksellers Association, Inc. v. Hudnut (1985).)