WASHINGTON -- The Supreme Court, handing feminists and religious conservatives a major defeat, ruled today it is unconstitutional to define pornography as sex discrimination.
The court affirmed a ruling by the 7th U.S. Circuit Court of Appeals that found an ordinance passed by the city of Indianapolis was unconstitutional. The ordinance had attempted to fight pornography by defining it as sex discrimination and allowing those aggrieved to bring charges.
The court's action affirming the ruling came in a brief order that noted Chief Justice Warren Burger and Justices William Rehnquist and Sandra Day O'Connor wanted to hear the case.
The case involves a novel approach to controlling pornography. Some feminists who oppose pornography because they believe it leads to violence against women and conservatives who oppose such material on moral grounds have joined together in a number of cities to propose ordinances defining pornography not as obscenity but as sex discrimination.
The object is to allow women, who supporters of such laws argue are victims of pornography, to bring civil suits against those who produce, sell or exhibit pornography, which is defined as material that presents women as sexual objects to be injured, degraded or dominated.
Those opposed to the laws, including feminists, point out that, besides the constitutional question, much radical feminist literature is explicit and could come under such ordinances. Others point out accepted works of literature from James Joyce's 'Ulysses' to Homer's 'Iliad' depict women as submissive objects for conquest and domination and could come under the laws.
Such an ordinance was approved by the city council and mayor of Indianapolis in 1984. The law was immediately challenged in federal court on grounds it violated the First Amendment, which says 'Congress shall make no law ... abridging freedom of speech, or of the press.'
District Judge Sarah Evans Barker found the law unconstitutional in November 1984 and a three-judge appeals court panel agreed in August 1985. The appeals court said the ordinance 'discriminates on the ground of the content of the speech.'
Under the ordinance, the court said, 'Speech treating women in the approved way -- in sexual encounters 'premised on equality' -- is lawful no matter how sexually explicit. Speech treating women in the disapproved way -- as submissive in matters sexual or as enjoying humiliation -- is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole.'
The court concluded the 'state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and silence opponents.'
Michael Bamberger, an attorney representing those fighting the Indianapolis law said that by 'affirming the lower court's decision, the Supreme Court has removed any doubt that this type of statutory scheme is unconstitutional.'
He added that he hoped the action by the court brings to an end the 'misguided attempts' of various groups to regulate the sale of a variety of published material in the name of upholding the civil rights of women.
John Samples, a spokesman for Indianapois Mayor William Hudnut, said the case at least has given anti-pornography forces food for thought and that he expects city officials will try to develop another ordinance within the court guidelines, although nothing is 'on the table' now.
In seeking high court review, Indianapolis officials argued that pornography as defined in the ordinance is not protected by the First Amendment, that the interest in eradicating sex discrimination should have outweighed the expressive value of pornography, and that the ordinance does not discriminate on the basis of viewpoint.
Arguing against the ordinance, book publishers, magazine distributors and anti-censorship groups said the ordinance is 'irretrievably and unconstitutionally vague' and is an attempt to control speech.
'The (ordinance) is a thinly disguised attempt ... to ban First Amendment protected speech because it expresses views or condones conduct which may be objectionable to a segment of society,' the said.