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American Booksellers Ass’n v. Hudnut

    Citation. 771 F.2d 323, 1985 U.S. App. ;11 Media L. Rep. 2465

    Brief Fact Summary. An Indianapolis ordinance’s definition of pornography was held unconstitutional by the Supreme Court of the United States (Supreme Court) because it discriminated based on the content of the speech.

    Synopsis of Rule of Law. Any restriction on speech that discriminates on the ground of the content of the speech is unconstitutional.

    Facts. Indianapolis enacted an ordinance defining “pornography” as a practice that discriminates against women or the “use of men, children, or transsexuals in the place of women.” This ordinance does not refer to the prurient interest, to offensiveness, or to the standards of the community. It demands attention to particular depictions, not to the work judged as a whole. Supporters of the ordinance say that it will help reduce the tendency in men to view women as sexual objects. Those who oppose the ordinance point out that much radical feminist literature is explicit and depicts women in ways forbidden by the ordinance.

    Issue. Whether Indianapolis’s ordinance definition of pornography is constitutional?

    Held. No. Judgment of the lower court affirmed. The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way, in sexual encounters “premised on equality,” is lawful no matter how explicit. Speech treating women in the disapproved way, as submissive in sexual matters or enjoying humiliation, is unlawful no matter how significant the literary, artistic or political qualities of the work taken as a whole. Under the First Amendment of the United States Constitution (Constitution), the government must leave to the people the evaluation of ideas. This ordinance is thought patrol. It establishes an “approved” view of women, of how they must react to sexual encounters and how the sexes may relate to each other. This speech is protected no matter how insidious. Therefore, Indianapolis’s ordinance definition of pornography is not constitutional.

    Discussion. Where a restriction of speech is overbroad, sweeping in protected speech as well as unprotected speech, it will be held unconstitutional.


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