## Facts

- Indianapolis enacted an “Antipornography Civil Rights Ordinance” defining “pornography” as “graphic sexually explicit subordination” of women (and comparable depictions of men, children, or transsexuals).
- The ordinance targeted depictions such as women presented as enjoying pain, humiliation, or rape, or portrayed in servility, submission, mutilation, or physical harm in a sexual context.
- The ordinance provided civil-rights-style remedies, including civil liability against makers and sellers for injuries allegedly resulting from someone’s exposure to covered materials, and restrictions on “trafficking” and coercive involvement in pornography.
- Booksellers, publishers, distributors, and individual readers sought to prevent enforcement, alleging the ordinance violated the First Amendment.
- A federal district court enjoined enforcement and held the ordinance unconstitutional.
- The City appealed to the Seventh Circuit.

## Issues

1. Whether regulating sexually explicit expression as “sex discrimination,” rather than as obscenity, permits the government to impose civil liability and restrictions consistent with the First Amendment.
2. Whether the ordinance’s definition of pornography constitutes content-based and viewpoint-based regulation of protected speech.
3. Whether the ordinance fits within the narrow obscenity exception under *Miller v. California*.

## Decision

- The Seventh Circuit affirmed the injunction and held the ordinance unconstitutional under the First Amendment.
- The court concluded the ordinance suppressed speech because of its message and the ideas it conveyed about women and sexuality, making it viewpoint-based.
- The court held the ordinance did not fall within the obscenity exception because it departed from *Miller* by omitting prurient-interest and serious-value limitations.
- The Supreme Court summarily affirmed the judgment without opinion.

## Legal Principles

- Government may not restrict expression because of its message, ideas, subject matter, or content.
- A law that singles out speech depicting sexual subordination for special burdens regulates content and viewpoint, even if framed as an equality or civil-rights measure.
- Speech outside the *Miller* obscenity category remains protected even when the government asserts that the speech contributes to discriminatory attitudes or future harms.
- Legislatures may not create new categories of unprotected speech by defining disfavored ideas as harmful and imposing civil liability or distribution bans on that basis.
- First Amendment analysis generally assesses restrictions by category of speech, not by case-by-case judicial weighing of the value and harm of particular works.

## Conclusion

The ordinance was invalid because it targeted protected expression for conveying a disfavored viewpoint about women and sexuality and extended beyond the constitutional obscenity exception; labeling the restriction as a civil-rights remedy did not cure its First Amendment defects.


Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986)