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AMERICAN BOOKSELLERS
ASSOCIATION, INC., et al.,
Plaintiffs-Appellees, v.
WILLIAM H. HUDNUT, III, Mayor, City
of Indianapolis, et al.,
Defendants-Appellants
No. 84-3147
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
771 F.2d 323; 1985 U.S.
App. LEXIS 22623; 11 Media L. Rep.
2465
August 27, 1985, Decided
PRIOR
HISTORY: [**1]
Appeal from
the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
84 C 791-Sarah Evans Barker, Judge.
JUDGES:
Cudahy and Easterbrook, Circuit Judges, and
Swygert, Senior Circuit Judge. Swygert, Senior
Circuit Judge, concurring.
OPINIONBY:
EASTERBROOK
OPINION:
[*324] EASTERBROOK, Circuit Judge.
Indianapolis
enacted an ordinance defining
"pornography" as a practice that
discriminates against women.
"Pornography" is to be redressed
through the administrative and judicial methods
used for other discrimination. The City's
definition of "pornography" is
considerably different from
"obscenity," which the Supreme Court
has held is not protected by the First Amendment.
To be
"obscene" under Miller v.
California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S.
Ct. 2607 (1973), "a publication must,
taken as a whole, appeal to the prurient
interest, must contain patently offensive
depictions or descriptions of specified sexual
conduct, and on the whole have no serious
literary, artistic, political, or scientific
value." Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 105 S. Ct. 2794, 2800, 86 L.
Ed. 2d 394 (1985). Offensiveness must be
assessed under [**2] the standards of the
community. Both offensiveness and an appeal to
something other than "normal, healthy sexual
desires" (Brockett, supra, 105 S. Ct. at
2799) are essential elements of
"obscenity."
"Pornography"
under the ordinance 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 a 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."
Indianapolis
[**3] Code § 16-3(q). The statute provides that
the "use of men, children, or transsexuals
in the place of women in paragraphs (1) through
(6) above shall also constitute pornography under
this section." The ordinance as passed in
April 1984 defined "sexually explicit"
to mean actual or simulated intercourse or the
uncovered exhibition of the genitals, buttocks or
anus. An amendment in June 1984 deleted this
provision, leaving the term undefined.
The
Indianapolis ordinance does not refer to the
prurient interest, to offensiveness, or to the
standards of the community. It [*325] demands
attention to particular depictions, not to the
work judged as a whole. It is irrelevant under
the ordinance whether the work has literary,
artistic, political, or scientific value. The
City and many amici point to these omissions as
virtues. They maintain that pornography
influences attitudes, and the statute is a way to
alter the socialization of men and women rather
than to vindicate community standards of
offensiveness. And as one of the principal
drafters of the ordinance has asserted, "if
a woman is subjected, why should it matter that
the work has other value?" Catharine A.
MacKinnon, Pornography, [**4] Civil Rights, and
Speech, 20 Harv. Civ. Rts. -- Civ. Lib. L. Rev.
1, 21 (1985).
Civil rights
groups and feminists have entered this case as
amici on both sides. Those supporting the
ordinance say that it will play an important role
in reducing the tendency of men to view women as
sexual objects, a tendency that leads to both
unacceptable attitudes and discrimination in the
workplace and violence away from it. Those
opposing the ordinance point out that much
radical feminist literature is explicit and
depicts women in ways forbidden by the ordinance
and that the ordinance would reopen old battles.
It is unclear how Indianapolis would treat works
from James Joyce's Ulysses to Homer's Iliad; both
depict women as submissive objects for conquest
and domination.
We do not
try to balance the arguments for and against an
ordinance such as this. 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" (MacKinnon, supra, at 22) -- is
lawful no matter how sexually explicit. Speech
treating women in the disapproved way -- as
submissive in matters sexual or as enjoying
humiliation [**5] -- is unlawful no matter how
significant the literary, artistic, or political
qualities of the work taken as a whole. The state
may not ordain preferred viewpoints in this way.
The Constitution forbids the state to declare one
perspective right and silence opponents.
I
The
ordinance contains four prohibitions. People may
not "traffic" in pornography,
"coerce" others into performing in
pornographic works, or "force"
pornography on anyone. Anyone injured by someone
who has seen or read pornography has a right of
action against the maker or seller.
Trafficking
is defined in § 16-3(g)(4) as the
"production, sale, exhibition, or
distribution of pornography." The offense
excludes exhibition in a public or educational
library, but a "special display" in a
library may be sex discrimination. Section
16-3(g)(4)(C) provides that the trafficking
paragraph "shall not be construed to make
isolated passages or isolated parts
actionable."
"Coercion
into pornographic performance" is defined in
§ 16-3(g)(5) as "coercing, intimidating or
fraudulently inducing any person . . . into
performing for pornography . . . ." The
ordinance specifies that proof of any of the
following "shall not constitute [**6] a
defense: I. That the person is a woman; . . . VI.
That the person has previously posed for sexually
explicit pictures . . . with anyone . . .; . . .
VIII. That the person actually consented to a use
of the performance that is changed into
pornography; . . . IX. That the person knew that
the purpose of the acts or events in question was
to make pornography; . . . XI. That the person
signed a contract, or made statements affirming a
willingness to cooperate in the production of
pornography; XII. That no physical force,
threats, or weapons were used in the making of
the pornography; or XIII. That the person was
paid or otherwise compensated."
"Forcing
pornography on a person," according to §
16-3(g)(5), is the "forcing of pornography
on any woman, man, child, or transsexual in any
place of employment, in education, in a home, or
in any public place." The statute does not
define forcing, but one of its authors states
that the definition reaches pornography shown to
medical students as part of their education
[*326] or given to language students for
translation. MacKinnon, supra, at 40-41.
Section
16-3(g)(7) defines as a prohibited practice the
"assault, physical attack, [**7] or injury
of any woman, man, child, or transsexual in a way
that is directly caused by specific
pornography."
For purposes
of all four offenses, it is generally "not .
. . a defense that the respondent did not know or
intend that the materials were pornography. . .
." Section 16-3(g)(8). But the ordinance
provides that 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 category (6) of the
definition of pornography. In cases of assault
caused by pornography, those who seek damages
from "a seller, exhibitor or
distributor" must show that the defendant
knew or had reason to know of the material's
status as pornography. By implication, those who
seek damages from an author need not show this.
A woman
aggrieved by trafficking in pornography may file
a complaint "as a woman acting against the
subordination of women" with the office of
equal opportunity. Section 16-17(b). A man,
child, or transsexual also may protest
trafficking "but must prove injury in the
[**8] same way that a woman is injured . . .
." Ibid. Subsection (a) also provides,
however, that "any person claiming to be
aggrieved" by trafficking coercion, forcing,
or assault may complain against the
"perpetrators." We need not decide
whether § 16-17(b) qualifies the right of action
in § 16-17(a).
The office
investigates and within 30 days makes a
recommendation to a panel of the equal
opportunity advisory board. The panel then
decides whether there is reasonable cause to
proceed (§ 16-24(2)) and may refer the dispute
to a conciliation conference or to a complaint
adjudication committee for a hearing (§§
16-24(3), 16-26(a)). The committee uses the same
procedures ordinarily associated with civil
rights litigation. It may make findings and enter
orders, including both orders to cease and desist
and orders "to take further affirmative
action . . . including but not limited to the
power to restore complainant's losses . . .
." Section 16-26(d). Either party may appeal
the committee's decision to the board, which
reviews the record before the committee and may
modify its decision.
Under
Indiana law an administrative decision takes
effect when rendered, unless a court issues [**9]
a stay. Ind. Stat. § 4-22-1-13. The board's
decisions are subject to review in the ordinary
course. Ind. Stat. § 4-22-1-44. Judicial review
in pornography cases is to be de novo,
Indianapolis Code § 16-27(e), which provides a
second complete hearing. When the board finds
that a person has engaged in trafficking or that
a seller, exhibitor, or distributor is
responsible for an assault, it must initiate
judicial review of its own decision, ibid., and
the statute prohibits injunctive relief in these
cases in advance of the court's final decision.
(This is unlike the usual procedure under state
law, which permits summary enforcement. Ind.
Stat. §§ 4-22-1-18 and 4-22-1-27.)
The district
court held the ordinance unconstitutional. 598
F. Supp. 1316 (S.D. Ind. 1984). The court
concluded that the ordinance regulates speech
rather than the conduct involved in making
pornography. The regulation of speech could be
justified, the court thought, only by a
compelling interest in reducing sex
discrimination, an interest Indianapolis had not
established. The ordinance is also vague and
overbroad, the court believed, and establishes a
prior restraint of speech.
II
The
plaintiffs are a congeries [**10] of distributors
and readers of books, magazines, and films. The
American Booksellers Association comprises about
5,200 bookstores and chains. The Association for
American Publishers includes most of the
country's publishers. Video Shack, Inc., sells
and rents video cassettes in Indianapolis. Kelly
Bentley, a resident of Indianapolis, reads [*327]
books and watches films. There are many more
plaintiffs. Collectively the plaintiffs (or their
members, whose interests they represent) make,
sell, or read just about every kind of material
that could be affected by the ordinance, from
hard-core films to W.B. Yeats's poem "Leda
and the Swan" (from the myth of Zeus in the
form of a swan impregnating an apparently
subordinate Leda), to the collected works of
James Joyce, D.H. Lawrence, and John Cleland.
The
interests of Bentley and many of the members of
the organizational plaintiffs are directly
affected by the ordinance, which gives them
standing to attack it. Buckley v. Valeo, 424
U.S. 1, 11-12 & n. 10, 46 L. Ed. 2d 659, 96
S. Ct. 612 (1976). There is no need to invoke
the special standing rules applicable to
overbroad laws that affect speech, see Schad
v. Borough of Mount Ephraim [**11] , 452 U.S. 61,
68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981);
Henry P. Monaghan, Overbreadth, 1981 Sup. Ct.
Rev. 1.
The district
court prevented the ordinance from taking effect.
The expedition with which this suit was filed
raises questions of ripeness and abstention.
Ripeness is a prudential question, see Buckley,
supra, 424 U.S. at 13-18; Thomas v. Union
Carbide Agricultural Products Co., 473 U.S. 568,
105 S. Ct. 3325, 3332-34, 87 L. Ed. 2d 409
(1985). A case is not ripe if the issues are
still poorly formed or the application of the
statute is uncertain. A challenge may be ripe,
however, even when the statute is not yet
effective. Entertainment Concepts, Inc. v.
Maciejewski, 631 F.2d 497, 500 (7th Cir. 1980),
cert. denied, 450 U.S. 919, 101 S. Ct. 1366,
67 L. Ed. 2d 346 (1981). The statute
challenged in Pierce v. Society of Sisters,
268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571
(1925), had an effective date two years in
the future, yet the Court found the suit ripe.
Here, as in Pierce, the dispute may be resolved
without reference to the administration of the
statute. We gain nothing by waiting. Time would
take a toll, however, on the speech of the
parties [**12] subject to the act. They must take
special care not to release material that might
be deemed pornographic, for that material could
lead to awards of damages. Deferred adjudication
would produce tempered speech without assisting
in resolution of the controversy.
It is also
inappropriate to abstain under Railroad
Commission v. Pullman Co., 312 U.S. 496, 85 L.
Ed. 971, 61 S. Ct. 643 (1941). Abstention is
appropriate when state courts may clarify the
meaning of a statute, thus sharpening the
constitutional dispute and perhaps preventing an
unnecessary constitutional adjudication. This
statute, however, is all too clear. Cf. Mazanec
v. North Judson-San Pierre School Corp., 763 F.2d
845, 848 (7th Cir. 1985). A state court could
not construe this ordinance as an
"ordinary" obscenity law; another law
serves that function. Ind. Stat. § 35-49-1-1 et
seq. It is designed to be distinctively
different, to prohibit explicitly sexual speech
that "subordinates" women in specified
ways. If abstention was unnecessary in Brockett,
despite the argument (which convinced the Chief
Justice and Justices Rehnquist and O'Connor, see
105 S. Ct. at 2804-05) that a state court
could save the statute [**13] by excising or
construing a single element of the definition of
obscenity, it surely is unnecessary here, for it
is the structure of the statute rather than the
meaning of any one of its terms that leads to the
constitutional problem.
III
"If
there is any fixed star in our constitutional
constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word
or act their faith therein." West
Virginia State Board of Education v. Barnette,
319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct. 1178
(1943). Under the First Amendment the
government must leave to the people the
evaluation of ideas. Bald or subtle, an idea is
as powerful as the audience allows it to [*328]
be. A belief may be pernicious -- the beliefs of
Nazis led to the death of millions, those of the
Klan to the repression of millions. A pernicious
belief may prevail. Totalitarian governments
today rule much of the planet, practicing
suppression of billions and spreading dogma that
may enslave others. One of the things that
separates our society from theirs is our absolute
right to propagate opinions [**14] that the
government finds wrong or even hateful.
The ideas of
the Klan may be propagated. Brandenburg v.
Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct.
1827 (1969). Communists may speak freely and
run for office. DeJonge v. Oregon, 299 U.S.
353, 81 L. Ed. 278, 57 S. Ct. 255 (1937). The
Nazi Party may march through a city with a large
Jewish population. Collin v. Smith, 578 F.2d
1197 (7th Cir.), cert. denied, 439 U.S.
916, 99 S. Ct. 291, 58 L. Ed. 2d 264 (1978).
People may criticize the President by
misrepresenting his positions, and they have a
right to post their misrepresentations on public
property. Lebron v. Washington Metropolitan
Area Transit Authority, 242 U.S. App. D.C. 215,
749 F.2d 893 (D.C. Cir. 1984) (Bork, J.).
People may seek to repeal laws guaranteeing equal
opportunity in employment or to revoke the
constitutional amendments granting the vote to
blacks and women. They may do this because
"above all else, the First Amendment means
that government has no power to restrict
expression because of its message [or] its ideas
. . . ." Police Department v. Mosley, 408
U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286
(1972). See also Geoffrey R. Stone, [**15]
Content Regulation and the First Amendment, 25
William & Mary L. Rev. 189 (1983); Paul B.
Stephan, The First Amendment and Content
Discrimination, 68 Va. L. Rev. 203, 233-36
(1982).
Under the
ordinance graphic sexually explicit speech is
"pornography" or not depending on the
perspective the author adopts. Speech that
"subordinates" women and also, for
example, presents women as enjoying pain,
humiliation, or rape, or even simply presents
women in "positions of servility or
submission or display" is forbidden, no
matter how great the literary or political value
of the work taken as a whole. Speech that
portrays women in positions of equality is
lawful, no matter how graphic the sexual content.
This is thought control. It establishes an
"approved" view of women, of how they
may react to sexual encounters, of how the sexes
may relate to each other. Those who espouse the
approved view may use sexual images; those who do
not, may not.
Indianapolis
justifies the ordinance on the ground that
pornography affects thoughts. Men who see women
depicted as subordinate are more likely to treat
them so. Pornography is an aspect of dominance.
n1 It does not persuade people so much as change
[**16] them. It works by socializing, by
establishing the expected and the permissible. In
this view pornography is not an idea; pornography
is the injury.
n1
"Pornography constructs what a woman is
in terms of its view of what men want
sexually . . . . Pornography's world of
equality is a harmonious and balanced place.
Men and women are perfectly complementary and
perfectly bipolar . . . . All the ways men
love to take and violate women, women love to
be taken and violated . . . . What
pornography does goes beyond its content: It
eroticizes hierarchy, it sexualizes
inequality. It makes dominance and submission
sex. Inequality is its central dynamic; the
illusion of freedom coming together with the
reality of force is central to its working .
. . . Pornography is neither harmless fantasy
nor a corrupt and confused misrepresentation
of an otherwise neutral and healthy sexual
situation. It institutionalizes the sexuality
of male supremacy, fusing the erotization of
dominance and submission with the social
construction of male and female . . . . Men
treat women as who they see women as being.
Pornography constructs who that is. Men's
power over women means that the way men see
women defines who women can be. Pornography .
. . is a sexual reality." MacKinnon,
supra, at 17-18 (note omitted, emphasis in
original). See also Andrea Dworkin,
Pornography: Men Possessing Women (1981). A
national commission in Canada recently
adopted a similar rationale for controlling
pornography. Special Commission on
Pornography and Prostitution, 1 Pornography
and Prostitution in Canada 49-59 (Canadian
Government Publishing Centre 1985).
[**17]
There is
much to this perspective. Beliefs are also facts.
People often act in [*329] accordance with the
images and patterns they find around them. People
raised in a religion tend to accept the tenets of
that religion, often without independent
examination. People taught from birth that black
people are fit only for slavery rarely rebelled
against that creed; beliefs coupled with the
self-interest of the masters established a social
structure that inflicted great harm while
enduring for centuries. Words and images act at
the level of the subconscious before they
persuade at the level of the conscious. Even the
truth has little chance unless a statement fits
within the framework of beliefs that may never
have been subjected to rational study.
Therefore we
accept the premises of this legislation.
Depictions of subordination tend to perpetuate
subordination. The subordinate status of women in
turn leads to affront and lower pay at work,
insult and injury at home, battery and rape on
the streets. n2 In the language of the
legislature, "pornography is central in
creating and maintaining sex as a basis of
discrimination. Pornography is a systematic
practice of exploitation and [**18] subordination
based on sex which differentially harms women.
The bigotry and contempt it produces, with the
acts of aggression it fosters, harm women's
opportunities for equality and rights [of all
kinds]." Indianapolis Code § 16-1(a)(2).
n2
MacKinnon's article collects empirical work
that supports this proposition. The social
science studies are very difficult to
interpret, however, and they conflict.
Because much of the effect of speech comes
through a process of socialization, it is
difficult to measure incremental benefits and
injuries caused by particular speech. Several
psychologists have found, for example, that
those who see violent, sexually explicit
films tend to have more violent thoughts. But
how often does this lead to actual violence?
National commissions on obscenity here, in
the United Kingdom, and in Canada have found
that it is not possible to demonstrate a
direct link between obscenity and rape or
exhibitionism. The several opinions in Miller
v. California discuss the U.S. commission.
See also Report of the Committee on Obscenity
and Film Censorship 61-95 (Home Office, Her
Majesty's Stationary Office, 1979); Special
Committee on Pornography and Prostitution, 1
Pornography and Prostitution in Canada 71-73,
95-103 (Canadian Government Publishing Centre
1985). In saying that we accept the finding
that pornography as the ordinance defines it
leads to unhappy consequences, we mean only
that there is evidence to this effect, that
this evidence is consistent with much human
experience, and that as judges we must accept
the legislative resolution of such disputed
empirical questions. See Gregg v. Georgia,
428 U.S. 153, 184-87, 49 L. Ed. 2d 859, 96 S.
Ct. 2909 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.).
[**19]
Yet this
simply demonstrates the power of pornography as
speech. All of these unhappy effects depend on
mental intermediation. Pornography affects how
people see the world, their fellows, and social
relations. If pornography is what pornography
does, so is other speech. Hitler's orations
affected how some Germans saw Jews. Communism is
a world view, not simply a Manifesto by Marx and
Engels or a set of speeches. Efforts to suppress
communist speech in the United States were based
on the belief that the public acceptability of
such ideas would increase the likelihood of
totalitarian government. Religions affect
socialization in the most pervasive way. The
opinion in Wisconsin v. Yoder, 406 U.S. 205,
32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972), shows
how a religion can dominate an entire approach to
life, governing much more than the relation
between the sexes. Many people believe that the
existence of television, apart from the content
of specific programs, leads to intellectual
laziness, to a penchant for violence, to many
other ills. The Alien and Sedition Acts passed
during the administration of John Adams rested on
a sincerely held belief that disrespect for the
government [**20] leads to social collapse and
revolution -- a belief with support in the
history of many nations. Most governments of the
world act on this empirical regularity,
suppressing critical speech. In the United
States, however, the strength of the support for
this belief is irrelevant. Seditious libel is
protected speech unless the danger is not only
grave but also imminent. See New York Times
Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686,
84 S. Ct. 710 (1964); cf. Brandenburg v.
Ohio, supra; New York [*330] Times Co. v.
United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91
S. Ct. 2140 (1971).
Racial
bigotry, anti-semitism, violence on television,
reporters' biases -- these and many more
influence the culture and shape our
socialization. None is directly answerable by
more speech, unless that speech too finds its
place in the popular culture. Yet all is
protected as speech, however insidious. Any other
answer leaves the government in control of all of
the institutions of culture, the great censor and
director of which thoughts are good for us.
Sexual
responses often are unthinking responses, and the
association of sexual arousal with the
subordination of women therefore may [**21] have
a substantial effect. But almost all cultural
stimuli provoke unconscious responses. Religious
ceremonies condition their participants. Teachers
convey messages by selecting what not to cover;
the implicit message about what is off limits or
unthinkable may be more powerful than the
messages for which they present rational
argument. Television scripts contain
unarticulated assumptions. People may be
conditioned in subtle ways. If the fact that
speech plays a role in a process of conditioning
were enough to permit governmental regulation,
that would be the end of freedom of speech.
It is
possible to interpret the claim that the
pornography is the harm in a different way.
Indianapolis emphasizes the injury that models in
pornographic films and pictures may suffer. The
record contains materials depicting sexual
torture, penetration of women by red- hot irons
and the like. These concerns have nothing to do
with written materials subject to the statute,
and physical injury can occur with or without the
"subordination" of women. As we discuss
in Part IV, a state may make injury in the course
of producing a film unlawful independent of the
viewpoint expressed in the film.
The more
[**22] immediate point, however, is that the
image of pain is not necessarily pain. In Body
Double, a suspense film directed by Brian
DePalma, a woman who has disrobed and presented a
sexually explicit display is murdered by an
intruder with a drill. The drill runs through the
woman's body. The film is sexually explicit and a
murder occurs -- yet no one believes that the
actress suffered pain or died. In Barbarella a
character played by Jane Fonda is at times
displayed in sexually explicit ways and at times
shown "bleeding, bruised, [and] hurt in a
context that makes these conditions sexual"
-- and again no one believes that Fonda was
actually tortured to make the film. In Carnal
Knowledge a woman grovels to please the sexual
whims of a character played by Jack Nicholson; no
one believes that there was a real sexual
submission, and the Supreme Court held the film
protected by the First Amendment. Jenkins v.
Georgia, 418 U.S. 153, 41 L. Ed. 2d 642, 94 S.
Ct. 2750 (1974). And this works both ways.
The description of women's sexual domination of
men in Lysistrata was not real dominance.
Depictions may affect slavery, war, or sexual
roles, but a book about slavery is not [**23]
itself slavery, or a book about death by poison a
murder.
Much of
Indianapolis's argument rests on the belief that
when speech is "unanswerable," and the
metaphor that there is a "marketplace of
ideas" does not apply, the First Amendment
does not apply either. The metaphor is honored;
Milton's Aeropagitica and John Stewart Mill's On
Liberty defend freedom of speech on the ground
that the truth will prevail, and many of the most
important cases under the First Amendment recite
this position. The Framers undoubtedly believed
it. As a general matter it is true. But the
Constitution does not make the dominance of truth
a necessary condition of freedom of speech. To
say that it does would be to confuse an outcome
of free speech with a necessary condition for the
application of the amendment.
A power to
limit speech on the ground that truth has not yet
prevailed and is not likely to prevail implies
the power to declare truth. At some point the
government must be able to say (as Indianapolis
has said): "We know what the truth is, yet a
[*331] free exchange of speech has not driven out
falsity, so that we must now prohibit
falsity." If the government may declare the
truth, [**24] why wait for the failure of speech?
Under the First Amendment, however, there is no
such thing as a false idea, Gertz v. Robert
Welch, Inc., 418 U.S. 323, 339, 41 L. Ed. 2d 789,
94 S. Ct. 2997 (1974), so the government may
not restrict speech on the ground that in a free
exchange truth is not yet dominant.
At any time,
some speech is ahead in the game; the more
numerous speakers prevail. Supporters of minority
candidates may be forever "excluded"
from the political process because their
candidates never win, because few people believe
their positions. This does not mean that freedom
of speech has failed.
The Supreme
Court has rejected the position that speech must
be "effectively answerable" to be
protected by the Constitution. For example, in Buckley
v. Valeo, supra, 424 U.S. at 39-54, the Court
held unconstitutional limitations on expenditures
that were neutral with regard to the speakers'
opinions and designed to make it easier for one
person to answer another's speech. See also FEC
v. National Conservative PAC, 470 U.S. 480, 105
S. Ct. 1459, 84 L. Ed. 2d 455 (1985). In Mills
v. Alabama, 384 U.S. 214, 16 L. Ed. 2d 484, 86 S.
Ct. 1434 (1966), the Court held
unconstitutional [**25] a statute prohibiting
editorials on election day -- a statute the state
had designed to prevent speech that came too late
for answer. In cases from Eastern Railroad
Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct.
523 (1961), through NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 73 L. Ed. 2d 1215,
102 S. Ct. 3409 (1982), the Court has held
that the First Amendment protects political
stratagems -- obtaining legislation through
underhanded ploys and outright fraud in Noerr,
obtaining political and economic ends through
boycotts in Clairborne Hardware -- that may be
beyond effective correction through more speech.
We come,
finally, to the argument that pornography is
"low value" speech, that it is enough
like obscenity that Indianapolis may prohibit it.
Some cases hold that speech far removed from
politics and other subjects at the core of the
Farmers' concerns may be subjected to special
regulation. E.g., FCC v. Pacifica Foundation,
438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026
(1978); Young v. American Mini Theatres,
Inc., 427 U.S. 50, 67-70, 49 L. Ed. 2d 310, 96 S.
Ct. 2440 (1976) (plurality opinion); Chaplinsky
[**26] v. New Hampshire, 315 U.S. 568, 571-72, 86
L. Ed. 1031, 62 S. Ct. 766 (1942). These
cases do not sustain statutes that select among
viewpoints, however. In Pacifica the FCC sought
to keep vile language off the air during certain
times. The Court held that it may; but the Court
would not have sustained a regulation prohibiting
scatological descriptions of Republicans but not
scatological descriptions of Democrats, or any
other form of selection among viewpoints. See Planned
Parenthood Ass'n v. Chicago Transit Authority,
767 F.2d 1225 (7th Cir. 1985), slip op.
13-14.
At all
events, "pornography" is not low value
speech within the meaning of these cases.
Indianapolis seeks to prohibit certain speech
because it believes this speech influences social
relations and politics on a grand scale, that it
controls attitudes at home and in the
legislature. This precludes a characterization of
the speech as low value. True, pornography and
obscenity have sex in common. But Indianapolis
left out of its definition any reference to
literary, artistic, political, or scientific
value. The ordinance applies to graphic sexually
explicit subordination in works great and small.
n3 The Court sometimes [**27] balances [*332] the
value of speech against the costs of its
restriction, but it does this by category of
speech and not by the content of particular
works. See John Hart Ely, Flag Desecration: A
Case Study in the Roles of Categorization and
Balancing in First Amendment Analysis, 88
Harv. L. Rev. 1482 (1975); Geoffrey R. Stone,
Restrictions of Speech Because of its Content:
The Strange Case of Subject-Matter Restrictions,
46 U. Chi L. Rev. 81 (1978). Indianapolis has
created an approved point of view and so loses
the support of these cases.
n3
Indianapolis briefly argues that Beauharnais
v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72
S. Ct. 725 (1952), which allowed a state
to penalize "group libel," supports
the ordinance. In Collin v. Smith, supra,
578 F.2d at 1205, we concluded that cases
such as New York Times v. Sullivan had so
washed away the foundations of Beauharnais
that it could not be considered
authoritative. If we are wrong in this,
however, the case still does not support the
ordinance. It is not clear that depicting
women as subordinate in sexually explicit
ways, even combined with a depiction of
pleasure in rape, would fit within the
definition of a group libel. The well
received film Swept Away used explicit sex,
plus taking pleasure in rape, to make a
political statement, not to defame. Work must
be an insult or slur for its own sake to come
within the ambit of Beauharnais, and a work
need not be scurrilous at all to be
"pornography" under the ordinance.
[**28]
Any
rationale we could imagine in support of this
ordinance could not be limited to sex
discrimination. Free speech has been on balance
an ally of those seeking change. Governments that
want stasis start by restricting speech. Culture
is a powerful force of continuity; Indianapolis
paints pornography as part of the culture of
power. Change in any complex system ultimately
depends on the ability of outsiders to challenge
accepted views and the reigning institutions.
Without a strong guarantee of freedom of speech,
there is no effective right to challenge what is.
IV
The
definition of "pornography" is
unconstitutional. No construction or excision of
particular terms could save it. The offense of
trafficking in pornography necessarily falls with
the definition. We express no view on the
district court's conclusions that the ordinance
is vague and that it establishes a prior
restraint. Neither is necessary to our judgment.
We also express no view on the argument presented
by several amici that the ordinance is itself a
form of discrimination on account of sex.
Section 8 of
the ordinance is a strong severability clause,
and Indianapolis asks that we parse the ordinance
to save what [**29] we can. If a court could do
this by surgical excision, this might be
possible. Zbaraz v. Hartigan, 763 F.2d 1532,
1545 (7th Cir. 1985). But a federal court may
not completely reconstruct a local ordinance, and
we conclude that nothing short of rewriting could
save anything.
The offense
of coercion to engage in a pornographic
performance, for example, has elements that might
be constitutional. Without question a state may
prohibit fraud, trickery, or the use of force to
induce people to perform -- in pornographic films
or in any other films. Such a statute may be
written without regard to the viewpoint depicted
in the work. New York v. Ferber, 458 U.S. 747,
73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982),
suggests that when a state has a strong interest
in forbidding the conduct that makes up a film
(in Ferber sexual acts involving minors), it may
restrict or forbid dissemination of the film in
order to reinforce the prohibition of the
conduct. A state may apply such a rule to
non-sexual coercion (although it need not). We
suppose that if someone forced a prominent
political figure, at gunpoint, to endorse a
candidate for office, a state could forbid the
commercial sale of the [**30] film containing
that coerced endorsement. The same principle
allows a court to enjoin the publication of
stolen trade secrets and award damages for the
publication of copyrighted matter without
permission. See Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.
Ct. 2218, 85 L. Ed. 2d 588 (1985). Cf. Snepp
v. United States, 444 U.S. 507, 509 & n. 3,
62 L. Ed. 2d 704, 100 S. Ct. 763 (1980).
But the
Indianapolis ordinance, unlike our hypothetical
statute, is not neutral with respect to
viewpoint. The ban on distribution of works
containing coerced performances is limited to
pornography; coercion is irrelevant if the work
is not "pornography," and we have held
the definition of "pornography" to be
defective root and branch. A legislature might
replace "pornography" [*333] in §
16-3(g)(4) with "any film containing
explicit sex" or some similar expression,
but even the broadest severability clause does
not permit a federal court to rewrite as opposed
to excise. Rewriting is work for the legislature
of Indianapolis. Cf. Stanton v. Stanton, 421
U.S. 7, 43 L. Ed. 2d 688, 95 S. Ct. 1373 (1975);
Califano v. Westcott, 443 U.S. 76, 61 L. Ed.
2d 382, [**31] 99 S. Ct. 2655 (1979).
The offense
of forcing pornography on unwilling recipients is
harder to assess. Many kinds of forcing (such as
giving texts to students for translation) may
themselves be protected speech. Rowan v. Post
Office, 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct.
1484 (1970), shows that a state may permit
people to insulate themselves from categories of
speech -- in Rowan sexual mail -- but that the
government must leave the decision about what
items are forbidden in the hands of the
potentially offended recipients. See Bolger v.
Youngs Drug Products Corp., 463 U.S. 60, 77 L.
Ed. 2d 469, 103 S. Ct. 2875 (1983) (the
government may not define for itself a category
of constitutionally protected but sexual speech
that may not be mailed). Exposure to sex is not
something the government may prevent, see Erznoznik
v. City of Jacksonville, 422 U.S. 205, 45 L. Ed.
2d 125, 95 S. Ct. 2268 (1975). We therefore
could not save the offense of "forcing"
by redefining "pornography" as all
sexually-offensive speech or some related
category. The statute needs a definition of
"forcing" that removes the government
from the role of censor. See also Planned
Parenthood Ass'n, [**32] supra, holding that the
"captive audience" problem does not
permit a government to discriminate on account of
the speaker's message.
The section
creating remedies for injuries and assaults
attributable to pornography also is salvageable
in principle, although not by us. The First
Amendment does not prohibit redress of all
injuries caused by speech. Injury to reputation
is redressed through the law of libel, which is
constitutional subject to strict limitations.
Cases such as Brandenburg v. Ohio and NAACP v.
Claiborne Hardware hold that a state may not
penalize speech that does not cause immediate
injury. But we do not doubt that if, immediately
after the Klan's rally in Brandenburg, a mob had
burned to the ground the house of a nearby black
person, that person could have recovered damages
from the speaker who whipped the crowd into a
frenzy. All of the Justices assumed in Claiborne
Hardware that if the threats in Charles Evers's
incendiary speech had been a little less veiled
and had led directly to an assault against a
person shopping in a store owned by a white
merchant, the victim of the assault and even the
merchant could have recovered damages from the
speaker. [**33]
The law of
libel has the potential to muzzle the press,
which led to New York Times v. Sullivan. See also
Ollman v. Evans, 242 U.S. App. D.C. 301, 750
F.2d 970, 994-98 (D.C. Cir. 1984) (en banc)
(Bork, J., concurring). A law awarding damages
for assaults caused by speech also has the power
to muzzle the press, and again courts would place
careful limits on the scope of the right.
Certainly no damages could be awarded unless the
harm flowed directly from the speech and there
was an element of intent on the part of the
speaker, as in Sullivan and Brandenburg.
Much speech
is dangerous. Chemists whose work might help
someone build a bomb, political theorists whose
papers might start political movements that lead
to riots, speakers whose ideas attract violent
protesters, all these and more leave loss in
their wake. Unless the remedy is very closely
confined, it could be more dangerous to speech
than all the libel judgments in history. The
constitutional requirements for a valid recovery
for assault caused by speech might turn out to be
too rigorous for any plaintiff to meet. n4 But
the Indianapolis ordinance requires the
complainant to show that the attack was [*334]
[**34] "directly caused by specific
pornography" (§ 16-3(g)(7)), and it is not
beyond the realm of possibility that a state
court could construe this limitation in a way
that would make the statute constitutional. We
are not authorized to prevent the state from
trying.
n4 See,
e.g., Zamora v. CBS, 480 F. Supp. 199
(S.D. Fla. 1979), among the many cases
concluding that particular plaintiffs could
not show a connection sufficiently direct to
permit liability consistent with the First
Amendment.
Again,
however, the assault statute is tied to
"pornography," and we cannot find a
sensible way to repair the defect without seizing
power that belongs elsewhere. Indianapolis might
choose to have no ordinance if it cannot be
limited to viewpoint-specific harms, or it might
choose to extend the scope to all speech, just as
the law of libel applies to all speech. An
attempt to repair this ordinance would be nothing
but a blind guess.
No amount of
struggle with particular words and phrases in
this ordinance can leave [**35] anything in
effect. The district court came to the same
conclusion. Its judgment is therefore
AFFIRMED
CONCURBY:
SWYGERT
CONCUR:
SWYGERT, Senior Circuit Judge, concurring.
I concur in
Parts I, II, and III of the court's opinion
except for the following strictures. Although
raised in the district court, neither ripeness
nor abstention was made an issue on appeal. Given
that fact, I believe both are pseudo-issues and
this court need not treat them sua sponte. True,
some of the intervenors have discussed abstention
in their briefs; but we are without the benefit
of the views of the real parties at interest in
this case on either issue. More importantly, a
discussion and resolution of these issues are
quite unnecessary to the disposition of this
appeal.
I also
believe that the majority's questionable and
broad assertions regarding how human behavior can
be conditioned by certain teachings and beliefs
(see ante, slip op. at 10-12-13) are unnecessary.
For even if this court accepts the City of
Indianapolis' basic contention that pornography
does condition unfavorable responses to women,
the ordinance is still unconstitutional.
As to Part
IV of the opinion, I agree that the ordinance
[**36] is unconstitutional on first amendment
grounds and that there is no need to discuss
vagueness or prior restraint. I do, however,
disassociate myself from the extensive statements
with respect to how the Indianapolis City Council
could fashion an ordinance dealing with
pornography that might pass constitutional
muster. Indianapolis has asked us to sever the
ordinance and save those parts that are not
unconstitutional, if we can. All then that this
court is required to do is to rule that the
ordinance is not severable. Statements regarding
which portions of the ordinance may be
constitutional are merely advisory and are not
the function of this court.
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