American Booksellers Ass’n v. Hudnut

771 F.2d 323 (7th Cir. 1985); aff’d mem., 475 U.S. 1001 (1986)

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Nature of the Case

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Facts

Indianapolis enacted an ordinance defining ‘pornography’ as a practice that discriminates against women. The statute held that pornography is the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated, or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in any context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use or through postures or positions of servility or submission or display. The statute also provided that the use of men or transsexuals in the place of women for all of the above constituted pornography as well. The ordinance does not refer to the prurient interest, to offensiveness, or the standards of the community. The work is not judged as a whole. It is irrelevant under the ordinance whether the work has literary, artistic, political, or scientific value. The ordinance contains states people may not traffic in pornography, coerce others into performing in pornographic works or force pornography on anyone. The statute also held that anyone injured by someone who saw or read pornography had a cause of action against the seller or maker of the materials. For purposes of all four prohibitions (we see only three) in the ordinance, it is generally not a defense that the respondent did not know or intend that the materials were pornography. Damages are unavailable in trafficking cases unless the complainant proves that the respondent knew or had reason to know that the materials were pornography. It is a complete defense to a trafficking case that all of the materials in question were pornography only by virtue of the last category of the pornography definition (‘Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.’) American (P) brought suit against Hudnut (D) to declare the statute unconstitutional. D argued morality of the community was at stake as well as the physical well-being of the models and participants. D argued that pornography was low-value speech and could be prohibited. The District Court found for P and D appealed.