Indianapolis: Constitutionally, Three Strikes and They’re Out

America has triumphed over Indianapolis for the third time.

In 1984, religious fundamentalists on the Indianapolis City Council teamed up with phony “feminist” Catharine MacKinnon to outlaw adult entertainment in the city. It was bad enough that the law criminalized making or selling pornography (yes, it criminalized certain kinds of expression); even worse, if a woman felt emotionally or physically injured and believed that the offending man had seen porn, she could sue the porn’s maker or seller for damages.

It was a bizarre new way to think about human beings: if a man reads or views porn and then won’t hire a woman, or forces a woman into sex, the porn did it.

The law was repealed by a federal appeals court, which sung a beautiful Constitutional song:

“…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. Under the First Amendment the government must leave to the people the evaluation of ideas. A belief may be pernicious…and may [even] prevail. One of the things that separates our society from [totalitarianism] is our absolute right to propagate opinions that the government finds wrong or even hateful.”

A decade later, Indianapolis decided to squelch adults’ rights again, by banning swing clubs. Yes, it went after private citizens getting together in each others’ homes to have sex with each other. Two clubs folded; the third fought the ordinance, which the city defended. Many years and a million dollars in legal costs later, the law was overturned.

But the city of Indianapolis wasn’t finished trying to control adult sexuality. In 2005 it passed an ordinance creating the category of “adult entertainment business”—and created special rules they had to follow. First, they needed a special license (just to sell books, magazines, films, or vibrators). Second, they were prohibited from operating on Sundays, or after midnight.

If this doesn’t sound so terribly wrong, imagine if these restrictions were placed on any store selling books or magazines about racial equality, or about vaccination, or about home-schooling. Unthinkable, right?

Of course, government in America is prohibited from controlling how people express themselves—you know, freedom of the press, of assembly, of speech. So a city can’t legally say “we’re against dirty books” (or any other kind of books). Instead, like most cities ignoring the Constitution to regulate adult sexuality, Indianapolis claimed that it wasn’t trying to control certain kinds of books or ideas, but the “adverse secondary effects” supposedly occurring wherever these materials were sold (crime, littering, drug use, blight).

U.S. courts have been mixed in how much they required cities to prove that these “adverse secondary effects” really exist. For example, Phoenix was able to claim that swing clubs caused littering and public urination without discussing how much this occurred at local bars or 7-Elevens.

So it was a great day last week when the U.S. Court of Appeals ruled that Indianapolis was more interested in suppressing the expression of ideas it didn’t like than it was in the problems that such expression supposedly attracted.

Judge Easterbrook—the same poet who had educated MacKinnon and her small-town cult following 25 years previously—quoted American Bookseller Ass’n. v Hudnut:

“Above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas…”

When this country stands by its radical rules of free expression and secular pluralism, you gotta love America. Happy Labor Day to gutsy attorneys Steven Shafron & Michael Murray.

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