On October 18th, 1983, the
anti-pornography feminist Catharine MacKinnon testified before the
Minneapolis Zoning Commission on a proposed ordinance that would restrict the location of
adult bookstores and
adult theatres. MacKinnon, a graduate of
Yale Law School that had taught at numerous universities around the country, had been teaching at the
University of Minnesota Law School on pornography when asked to speak before the commission.
They got a lot more than that for which they bargained.
Within five weeks, in collusion with
Andrea Dworkin who had also testified before the commission, a new city ordinance had been written that allowed any woman to sue the producer or distributor of
pornography for "
trafficking in pornography" on the grounds that it is
sexual discrimination against women. Any form of sexually explicit material that showed a woman subordinate to a man was considered "pornography" for the purpose of the clause. The bill passed 7-6 five weeks after introduction. Fortunately, forseeing its
unconstitutionality, the mayor of the city vetoed the bill and its less harsh successor. Unfortunately, a similar bill was introduced in
Indianapolis four months later and passed strictly along party lines in the staunchly conservative city: 24
Republicans for and 5
Democrats against.
What follows is the abridged text of
the Indianapolis Ordinance. Omitted is material not relating to the pornographic nature of the bill.
CODE OF INDIANAPOLIS AND MARION COUNTY INDIANA
Chapter 16
HUMAN RELATIONS; EQUAL OPPORTUNITY
Sec. 16-1. Findings, policies and purposes.
(a) Findings. The city-county council hereby makes the following findings:
(1) The council finds that the practice of denying equal opportunities in employment, education, access to and use of public accommodations, and acquisition of real estate based on race, color, religion, ancestry, national origin, handicap, or sex is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the policies contained herein and shall be considered discriminatory practices.
(2) Pornography is a discriminatory practice based on sex which denies women equal opportunities in society. Pornography is central in creating and maintaining sex as a basis for discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women's opportunities for equality of rights in employment, education, access to and use of public accommodations, and acquisition of real property; promote rape, battery, child abuse, kidnapping and prostitution and inhibit just enforcement of laws against such acts; and contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods.
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(8) To prevent and prohibit all discriminatory practices of sexual subordination or inequality through pornography.
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Sec. 16-3. Definitions.
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(4) Trafficking in pornography: The production, sale, exhibition, or distribution of pornography.
a. City, state, and federally funded public libraries or private and public university and college libraries in which pornography is available for study, including on open shelves, shall not be construed to be trafficking in pornography, but special display presentations of pornography in said places is sex discrimination.
b. The formation of private clubs or associations for purposes of trafficking in pornography is illegal and shall be considered a conspiracy to violate the civil rights of women.
c. This paragraph (4) shall not be construed to make isolated passages or isolated parts actionable.
(5) Coercion into pornographic performance: Coercing, intimidating or fraudulently inducing any person, including a man, child or transsexual, into performing for pornography, which injury may date from any appearance or sale of any products of such performance.
a. Proof of the following facts or conditions shall not constitute a defense:
- That the person is a woman; or
- That the person is or has been a prostitute; or
- That the person has attained the age of majority; or
- That the person is connected by blood or marriage to anyone involved in or related to the making of the pornography; or
- That the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography; or
- That the person has previously posed for sexually explicit pictures for or with anyone, including anyone involved in or related to the making of the pornography at issue; or
- That anyone else, including a spouse or other relative, has given permission on the person's behalf; or
- That the person actually consented to a use of the performance that is changed into pornography; or
- That the person knew that the purpose of the acts or events in question was to make pornography; or
- That the person demonstrated no resistance or appeared to cooperate actively in the photographic sessions or in the sexual events that produced the pornography; or
- That the person signed a contract, or made statements affirming a willingness to cooperate in the production of pornography; or
- That no physical force, threats, or weapons were used in the making of the pornography; or
- That the person was paid or otherwise compensated.
(6) Forcing pornography on a person: 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.
(7) Assault or physical attack due to pornography: The assault, physical attack, or injury of any woman, man, child, or transexual in a way that is directly caused by specific pornography.
(8) Defenses: Where the materials which are the subject matter of a complaint under paragraphs (4), (5),or (7) of this subsection (g) are pornography or sex discrimination; provided, however, that in the cases under paragraph (g)(4) of section 16-3 or against a seller, exhibitor or distributor under paragraph (g)(7) of section 16-3, no damages or compensation for losses shall be recoverable unless the complainant proves that the respondent knew or had reason to know that the materials were pornography. Provided, further, that it shall be a defense to a complainant under paragraph (g)(4) of section 16-3 that the materials complained of are those covered only by paragraph (q)(6) of section 16-3.
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(q) Pornography shall mean 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 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.
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.
In August 1984, U.S. District Court Judge Sarah Evans Barker ruled the ordinance was unconstitutional. One year later, a three-judge panel of the Seventh Circuit Court of Appeals upheld the ruling. A year after that, the Supreme Court upheld the ruling again. MacKinnon now teaches law at the
University of Michigan Law School.
No, I
don't know who hired her.