This paper will evaluate the opinions of the district court and the Seventh Circuit that held that an Indianapolis ordinance violated the first amendment, with particular attention to the courts' treatment of the demonstrated harms of pornography (II). The paper argues that pornography is a practice of discrimination through which women are subordinated on the basis of sex (III). When pornography is understood in the context of social reality, it is seen as a practice of sex discrimination, just as racial segregation is understood as a practice of race discrimination when it and its meaning are seen in the context of a white supremacist society. Like all discrimination laws, the ordinance reaches practices of discrimination that are done in part through words or pictures and that construct the social definition of women and men. Consequently, if the ordinance violates the first amendment, so does all discrimination law. In response to the decision of the Seventh Circuit, the paper argues that the ordinance is not unconstitutional viewpoint discrimination because it is aimed at the harm of sex-based abuse and subordination, and not at the harm of an idea (IV). Finally, the courts' misapplications of first amendment doctrine and method are considered in relation to the construction of social reality, including through pornography, and in relation to their significance for the use of law as one tool for achieving sex equality (V).
Judicial Indifference to Pornography's Harm: American Booksellers v. Hudnut, 17 Golden Gate U. L. Rev.