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
- 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.
- Whether the ordinance’s definition of pornography constitutes content-based and viewpoint-based regulation of protected speech.
- 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.