5. Regulation of Pornography: An Historical Perspective

Part: 
Four
Chapter: 
5

Historical discussions with respect to pornography are generally found under two separate topics: one is based in moral doctrines and the other has developed through the legal system. Each of these historical developments will be discussed separately insofar as the concepts are unique and such discussion is warranted.

The legal perspective surrounding pornography has historically taken the form of criminal obscenity laws. The origins of obscenity law can be traced back to the religious doctrines of ancient civilization.[1246] Blasphemy, heresy, and impiety were the basis of charges brought against prominent individuals in Greece during the reign of Pericles.[1247] During the reign of Pericles.[1248] Plato spoke in favor of restricting writings that told untruths about the gods.[1249] Religious restrictions grew as Christianity became more entrenched, and led to the promulgation of the Index Liborum Prohibitorum by Pope Paul IV.[1250] Works which were prohibited were done so on religious grounds rather than on the basis of any sexual content.[1251]

The development of modern obscenity law as it is recognized in the United States began in England.[1252] The court of Star Chamber reviewed books and theater during the reign of King Henry VIII and continued until 1640.[1253] Restrictions placed on materials were still based largely on religious and political grounds. The focus began to change in 1663 when the British courts were confronted with the situation which arose as the case of King v. Sedley.[1254] This case is widely regarded as the first reported obscenity case. Sir Charles Sedley, in an intoxicated state, stood on a tavern balcony, removed his clothes, and delivered a series of profane remarks. At the conclusion of his tirade, he poured bottles filled with urine on the crowd below. Sedley was convicted, fined, and incarcerated for a week. Sedley's case was thus the first involving an offense to public decency as opposed to one against religion or government.[1255] One hundred and fifty years later, it would also be relied on as precedent by the first American court to find obscenity indictable at common law.[1256]

Public concern over obscenity increased in 17th century England, and in 1708 James Read was indicted for publishing the book The Fifteen Plagues of a Maidenhead.[1257] The Queens Bench Court dismissed the indictment against Read for obscene libel in Queen v. Read.[1258] The court found that Read's work was not a reflection on the government, the church, or any individual, and it rejected the idea that libel included obscenity.[1259] Another case of obscene libel arose in 1727 when Edmund Curll was convicted for publishing Venus in the Cloister or the Nun in Her Smock. In Dominus Rex v. Curll,[1260] the court rejected the doctrine of Read and relied instead on Sedley's Case. The court found corruption of morals to be an offense at common law and thereby established obscenity as a crime.[1261]

The crime of obscene libel took root in 19th century England, and was accompanied by the rise of the Society for the Suppression of Vice in 1802.[1262] The Society crusaded against obscene publications, and their work culminated in the passage of two important pieces of legislation. The Vagrancy Act of 1824 made publication of indecent pictures a forbidden act and Lord Campbell's Act of 1857 gave magistrates authority to issue search warrants for obscene material and have it destroyed.[1263] Since the printing of photographs was not prevalent until the late 1800s, the challenged works consisted mainly of writings, sketches, or line drawings.[1264]

The offense of obscene libel was still devoid of any precise definition of what material would be considered obscene. The initial definition was presented in Regina v. Hicklin.[1265] The case involved an anti-religious pamphlet called "The Confessional Unmasked," which detailed the sexual nature of questions posed by Catholic priests during confessions. The trial magistrate, Hicklin, ordered the publication destroyed because of references to intercourse and fellatio.[1266] On appeal, the Quarter Sessions Court reversed Hicklin on the grounds that the publisher's motive was an innocent one despite the obscene content of the writing.[1267]

On final appeal, the Queens Bench affirmed Hicklin's initial order and Chief Justice Cockburn fashioned the resulting obscenity standard. Cockburn held that the author's intent was irrelevant as long as the work was obscene.[1268] The work was obscene if it tended to deprave and corrupt minds which are open to such immoral influences and into whose hands the publication may fall.[1269] The determination was based on the impact of certain parts of the writing on susceptible individuals.[1270] The Hicklin test remained in force in England for 100 years.[1271] The decision in Hicklin also had an effect on American obscenity law.[1272]

American laws concerning pornography also found their origin in sacrilegious works. In 1711, the colony of Massachusetts enacted a statute stating that "evil communication, wicked, profane, impure, filthy, and obscene songs, composures, writings, or prints do corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially when digested, composed or uttered in imitation or in mimicking of preaching or any other part of divine worship."[1273] The law prohibited the "composing, writing, printing, or publishing of any filthy, obscene or profane story, pamphlets, libel or mock sermon, in imitation of preaching or any other part of divine worship."[1274] Despite this enactment, there were no reported obscenity prosecutions until 1815 and the Pennsylvania case of Commonwealth v. Sharpless.[1273] Sharpless was charged with showing a drawing depicting a man and woman in a lewd posture.[1276] Like his British counterparts in Read and Curll, Sharpless contended that there was no statute prohibiting his conduct. The Pennsylvania court relied on Sedley's Case and found crimes against public decency to be indictable at common law.[1277]

The first case involving a book alleged to be obscene arose in Massachusetts six years later.[1278] Peter Holmes was charged with publishing a lewd illustration along with the book Memories of a Woman of Pleasure.[1279] Relying on both the common law offense and the Massachusetts statute, the Supreme Judicial Court of Massachusetts convicted Holmes.[1280] While the American courts now recognized the common law crime of obscenity, much of the activity which followed was found in the legislative arena. In 1821, Vermont passed the first obscenity statute in the United States. The statute prohibited the printing, publishing, or vending of any lewd or obscene book, picture, or print.[1281] Massachusetts enlarged its colonial statute[1282] and other states soon followed.[1283]

The first federal law concerning obscene materials was enacted in 1842. The focus of the act was to regulate materials imported into the United States .[1284] It prohibited "all indecent and obscene prints, paintings, lithographs, engravings and transparencies."[1285]

The lax enforcement of these statutes after their enactment led citizens and religious groups to take action. Anthony Comstock, a store clerk in New York, took it upon himself to lead the crusade. Comstock and others formed the Committee for the Suppression of Vice and lobbied the Congress to pass tougher obscenity legislation. In 1873, Congress enacted a law governing the mailing of obscene matter.[1286] The Act stated in part that,

... no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any of the hereinbefore-mentioned articles or things, or any notice, or paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the hereinafter-mentioned articles or things, shall take, or cause to be taken, from the mail any such letter or package, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall, for every offense, be fined not less than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, in the discretion of the judge.[1287]

Comstock himself became a federal agent and worked to confiscate prohibited material from the mails. In the year immediately following the enactment of what became known as the Comstock Act, Anthony Comstock claimed to have seized hundreds of thousands of obscene items.[1288] Litigation involving the Comstock Act centered primarily on procedural issues and the authority of Congress to regulate matters as were enumerated in the statute.[1289]

As cases began to arise under the obscenity statutes the question of what items constituted obscene materials was addressed using the English precedent of Regina v Hicklin. In United States v Bennett,[1290] the Court held that a determination of obscenity based on a portion or excerpt of a work was valid and that its effect would be measured in terms of whether it would corrupt those who might come into contact with it.[1291] In applying Hicklin, the American courts reached varying results as to what materials were obscene under the test.[1292]

It was not until the twentieth century that the Hicklin rule began to wane. Judge Learned Hand criticized the Hicklin test in United States v. Kennedy.[1293] He questioned whether the treatment of sexual topics should be reduced to the standard found in a child's library.[1294] He also fashioned a test for implementing community standards, holding that obscenity must be determined in accordance with the present balance between candor and shame at which the community may have arrived here and now.[1295] Twenty years later in United States v. One Book Entitled Ulysses,[1296] Judge Augustus Hand rejected Hicklin and ruled that excerpts of a work could no longer be used to determine obscenity.[1297] The court noted that the determination of obscenity must be based on an examination of the dominant effect of the material in question.[1298]

The Hicklin standard in any form had less than ten years to live when, in 1949, a Pennsylvania state court held that a finding of obscenity must be based on the work's erotic allurement of the average reader.[1299]

During the first half of the twentieth century, serious literary efforts were the subjects of obscenity prosecutions. Ulysses by James Joyce was one such work, although it was not found to be obscene.[1300] Another was An American Tragedy by Theodore Dreiser. The Supreme Judicial Court of Massachusetts found it to be obscene in 1930.[1301] Tropic of Cancer and Tropic of Capricorn, by Henry Miller were both found to be obscene.[1302] The United States District Court heard evidence including eighteen published reviews of Henry Miller's works, fifteen letters, and two affidavits of critics, all attesting to the literary merit of the two books.[1303] The court rejected this evidence as "immaterial,"[1304] and held that portions of the books rendered both obscene.[1305] A claimant on behalf of Tropic of Capricorn had contended that the portions of the book containing sexual episodes and vernacular expletives with sexual references constituted only thirteen per cent of the total number of pages in the book.[1306] The District Court compared this argument to "the excuse of Midshipman Easy's servant girl that her illegitimate child was such a little one!"[1307] The United States Court of Appeals affirmed, and described Miller's works as practically everything that the world loosely regards as sin is detailed in the vivid, lurid, salacious language of smut, prostitution, and dirt."[1308]

The Appeals Court reasoned that obscenity, though a part of a composition of high literary merit, is not excepted from operation of the statute."[1309]

The Court rejected the evidence of the book's literary merit. presented below, which it called "opinions of authors who resent any limitations on their writings."[1310] Erskine Caldwell's God's Little Acre was found to be obscene by the Massachusetts Supreme Judicial Court,[1311] which described the work as abounding in sexual episodes, some of which were portrayed with an abundance of realistic detail.[1312] The trial court heard testimony from literary critics, professors of English literature, and a professor of sociology regarding the literary, cultural, and educational character of the book.[1313] From a sociological perspective, the book was defended as a portrait of poor whites in the old south.[1314] The Massachusetts high court found the book obscene despite this evidence and concluded that "art can flourish without pornography."[1315] In an obscenity prosecution against The Well of Loneliness, by Radclyffe Hall, the prosecution conceded that the book was a "well written, carefully constructed piece of fiction with no unclean words."[1316] It was praised by men of letters, critics, and artists, according to the court.[1317] The New York Magistrate's Court still found that the book's tales of lesbian love affairs tended to "justify the right of a pervert to prey on normal people."[1318] In finding the book obscene, the court stated under the Hicklin standard:

It pleads for tolerance on the part of society of those possessed of and inflicted with perverted traits and tendencies, but it does not argue for repression or modification of insidious impulses.[1319]

In 1957, the United States Supreme Court struck another blow against Hicklin and began its formulation of a modern obscenity standard. In Butler v Michigan,[1320] the Court reversed a conviction for a violation of Section 343 of the Michigan Penal Code that prohibited distribution of any material "containing obscene, immoral, lewd, or lascivious language ... pictures ... or descriptions tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth. "[1321] Speaking for a unanimous Court, Justice Frankfurter ruled that the statute was overbroad and violative of the Due Process clause of the Fourteenth Amendment of the Constitution.[1322] He stated, "We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children."[1323]

Butler was significant not only for its specific holding, but it also marked the end of the Hicklin standard. Material was no longer to be determined obscene by measuring the material's effect on susceptible individuals. It also foreshadowed the Supreme Court's landmark pronouncement in Roth v. United States[1324] in 1957.

In Roth v United States,[1325] the Supreme Court defined the scope of the First Amendment in the context of an obscenity case. Roth had been convicted of mailing obscene circulars and an obscene book in violation of federal law.[1326] Speaking for the Court, Justice Brennan upheld the conviction and found the protection of free speech under the First Amendment was not absolute.[1327] He stated that the First Amendment was not intended to protect every utterance and cited libel, profanity, and blasphemy as examples of unprotected speech. The Court relied on Chaplinsky v. New Hampshire[1328] which had excluded "the lewd and obscene [and] the profane" from the category of protected speech.[1329] Thus obscenity was held to be without First Amendment protection.[1330] Brennan went on to fashion a definition of obscenity, holding that "obscene material is material which deals with sex in a manner appealing to prurient interests."[1331] The Hicklin standard was rejected by the Court, with justice Brennan stating, "The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately dealing with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press."[1332]

The Supreme Court adopted a test which recognized material as obscene if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,"[1331] For the first time, the Supreme Court had defined obscenity and found it to be without First Amendment protection.

In 1966, the Supreme Court had occasion to reexamine its definition of obscenity in Memoirs v. Massachusetts.[1334] The case involved a state court determination that John Cleland's book Memories of a Woman of Pleasure was obscene.[1335] Writing for a sharply divided court, justice Brennan stated that three elements must coalesce in order for a book to be found obscene:

  1. the dominant theme of the material taken as a whole appeals to a prurient interest in sex.
  2. the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.
  3. and the material is utterly without redeeming social value.[1336]

In reversing the state court decision, Brennan found that the court had misinterpreted the "social value" part of the obscenity standard.[1337] He said the Massachusetts court "erred in holding that a book need not be worthless before it can be deemed obscene. A book cannot be proscribed unless it is found to be utterly without redeeming social value."[1338] Since the Massachusetts court had found that the book possessed a "modicum" of social value, it was therefore not obscene.[1339] The standard enumerated in Memoirs reached only what might be referred to as "hard-core" pornography and led to a period of minimal regulation of obscenity during the years leading up to Miller v. California.[1340]

By the time Miller v. California[1341] reached the Supreme Court in 1973, the composition of the tribunal had changed significantly. Since the Memoirs decision in 1966, Warren Burger had become Chief justice and justices Black, Fortas, and Harlan had been replaced by Blackmun, Powell, and Rehnquist. Miller resulted in the first majority opinion from the Supreme Court on the issue of obscenity since Roth in 1957.

Miller had been convicted under the California obscenity statute for mailing unsolicited, illustrated advertisements for "adult" books.[1342] At the outset of his opinion upholding Miller's conviction, Chief Justice Burger said the Court would undertake to formulate more concrete standards for determining obscenity.[1343] Burger pointed out that the standard in Memoirs v. Massachusetts was a mere plurality opinion of three justices, and veered sharply from the test set forth in Roth.[1344] He rejected the "utterly without redeeming social value" portion of the Memoirs test as requiring proof of a negative, which is "a burden virtually impossible to discharge under our criminal standards of proof."[1345] This pronouncement marked a major change from prior obscenity cases. Burger noted the Memoirs test now failed to command the support of a single member of the Court.[1346] The standard the Court announced in Miller would confine the scope of regulation to works that depict or describe sexual conduct. Further, the sexual conduct must be specifically defined by state law.[1347] The three part standard announced in Miller requires an examination of,

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[1348]

The Court also gave an example of the types of sexual conduct that state statutes could define for regulation under part two of the standard. The Court noted that prohibited conduct may involve,

  1. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
  2. Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.[1349]

Significantly, the Court's opinion in Miller also addressed the issue of "contemporary community standards" and found a national standard to be an "exercise in futility."[1350] Burger reasoned that a question of fact is involved in the application of community standards and that "our nation is simply too big and too diverse for this court to reasonably expect that such standards could be articulated for all fifty states. . . ."

A local rather than a national community standard would govern the determinations of "prurient interest" and "patent offensiveness."

The Chief justice chided the dissenters in Miller who favored what he referred to as an "absolutist, anything goes view of the First Amendment because it will lighten our burdens." As to the scope of First Amendment protection, the Court added that "To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom."[1351]

In a case decided the same day as Miller, the Supreme Court rejected the argument that obscene films are constitutionally immune from state regulation simply because they are exhibited to consenting adults only.[1352] However, the mere private possession of obscene matter cannot be proscribed.[1353] The court previously held in Stanley v. Georgia[1354] that the Constitution protects the right to receive information and ideas and to be generally free from government intrusion into one's privacy.[1355] The Supreme Court's decision in Smith v. United States[1356] clarified that the determination of serious literary, artistic, political, or scientific value is made with reference to a national and not a local standard.[1357] In Smith, the court found that only the questions of "prurient interest" and "patent offensiveness" are subject to local community standards under Miller.[1358]

In Jenkins v. Georgia,[1359] the Supreme Court held that juries do not have "unbridled discretion" in determining questions of "prurient interest" and "patent offensiveness" according to local community standards.[1360] Such determinations are subject to constitutional review.

The concept of pornography as a civil rights violation came to the forefront in 1984 when the city of Indianapolis, Indiana, enacted an ordinance "to prevent and prohibit all discriminatory practices of sexual subordination or inequality through pornography."[1361] The Indianapolis ordinance defined pornography as "the graphic sexually explicit subordination of women, whether in pictures or in words"[1362] and created a civil remedy for individuals aggrieved by discriminatory practices prohibited by the ordinance.[1363] These practices included trafficking in pornography, coercing a person into a pornographic performance.[1364]

The ordinance was promptly challenged and held unconstitutional in American Booksellers Assn. v. Hudnut.[1365] The District Court found that the ordinance regulated speech that was entitled to First Amendment protection.[1366] The court then focused on the issue of whether "the state's interest in protecting women from the humiliation and degradation which came from being depicted in a sexually subordinate context is so compelling as to warrant the regulation of otherwise free speech to accomplish that end."[1367] The court concluded that it was not and reasoned that women are capable of protecting themselves from being harmed by pornography.[1368] The court held that to "deny free speech in order to engineer social change in the name of accomplishing a greater good for one sector of our society erodes the freedoms of all . . . ."[1369]

The United States Court of Appeals for the Seventh Circuit affirmed the District Court's decision.[1370] The Court of Appeals accepted the premise of the ordinance that pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women.[1371] The Court also said in dicta that,

The Section creating remedies for injuries and assaults attributable to pornography ... is salvageable in principle, although not by us.[1372]

But the definition of pornography contained in the ordinance was its fatal flaw. The court held,

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" 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 state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and silence opponents.[1373]

The city of Indianapolis appealed to the United States Supreme Court, and on February 24, 1986, the Court summarily affirmed the judgment of the Court of Appeals.[1374]

Notes

  1. Id.
  2. Id.
  3. 2 Str. 789, 93 Eng. Rep., (1727), p. 849.
  4. Id.
  5. Id., p. 72.
  6. Id.
  7. Bland, A History of Book Illustrations, (1958), p. 272.
  8. L.R. 3 Q.B., (1868), p. 360.
  9. Id.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Technical Report, supra note 1246, p. 73.
  15. L. Tribe, supra note 1250, p. 658.
  16. Ancient Charter, Colony Laws and Province Laws of Massachusetts Bay (1814).
  17. Id.
  18. 2 Serg. & Rawle (1815), p. 91.
  19. Id.
  20. Id.
  21. Commonwealth v. Holmes, 17 Mass., (1821), p. 336.
  22. Id.
  23. Id.
  24. Laws of Vermont, 1824, Ch. XXIII, no. 1, S23.
  25. Technical Report, supra note 1246, pp. 74-75.
  26. Mass. Rev. Stat. Chr. 310 510.
  27. See, L. Tribe, supra note 1250, p. 658. 1285. 5 Stat. 556 S28.
  28. Technical Report, supra note 1246, p. 77.
  29. 17 Stat. 588, 18 U.S.C. S1461 (1985).
  30. Technical Report, supra note 1246, p. 78.
  31. Id.
  32. 24 F. Cas. 1093 (C.C.S.D.N.Y. 1879).
  33. Id.
  34. L. Tribe, supra note 1250, p. 658.
  35. 209 F., (S.D.N.Y. 1913), p. 119.
  36. Id.
  37. Id.
  38. 72 F2d, (2nd Cir. 1934), p. 705.
  39. Id.
  40. Id.
  41. Commonwealth v. Gordon, 66 Pa. D. & C., (Phila. 1949), p. 101.
  42. United States v. One Book Called "Ulysses," 5 F. Supp. 182 (S.D.N.Y. 1933), aff'd. in. 72 f.2d 705 (2d Cir. 1934).
  43. Commonwealth v. Friede, 271 Mass. 318, 171 N.E., (1930), p. 472.
  44. United States v. Two Obscene Books, 99 F. Supp. 760 (N.D. Cal. 1951), aff'd. sub nom, Besig v. U.S., 208 F.2d 142 (9th Cir. 1953).
  45. 99 F. Supp., p. 761.
  46. Id.
  47. Id., p. 763.
  48. Id.
  49. Id.
  50. 208 F.2d, p. 145.
  51. Id.
  52. Id., p. 147.
  53. Attorney General v. Book Named "God's Little Acre", 326 Mass. 281, 93 N.E. 2d, (1950), p. 819.
  54. 93 N.E.2d., p. 821.
  55. Id.
  56. Id.
  57. Id.
  58. People v. Friede, 233 N.Y.S., (1929), pp. 565, 567.
  59. Id., p. 569.
  60. Id.
  61. Id.
  62. 352 U.S., (1957), p. 380.
  63. Id., p. 381.
  64. Id., [Reference does not appear in manuscript]
  65. Id., p. 383.
  66. 354 U.S., (1957), p. 476.
  67. Id.
  68. 18 U.S.C. S1461.
  69. 354 U.S., (1957), p. 476.
  70. 315 U.S., (1942), p. 568.
  71. 354 U.S. at 485, quoting Chaplinksy v. New Hampshire, 315 U.S. 268, pp. 511-72.
  72. Id.
  73. Id., p. 487.
  74. Id., p. 489.
  75. Id.
  76. 383 U.S., (1965), p. 413.
  77. Id.
  78. Id., p. 418.
  79. Id., p. 419.
  80. Id.
  81. Id., pp. 419-20.
  82. 413 U.S., (1973), p. 15.
  83. Id.
  84. 413 U.S. 15, (1973), p. 16.
  85. Id., pp. 19-20.
  86. Id., p. 21.
  87. Id., pp. 24-25.
  88. Id., p. 25.
  89. Id.
  90. Id., p. 24.
  91. Id., p. 25.
  92. Id., p. 30.
  93. Id., p. 34.
  94. Paris Adult Theater I v. Slaton, 413 U.S., (1973), p. 49.
  95. 294 U.S., (1969), p. 55733.
  96. Id.
  97. Id.
  98. 431 U.S., (1977), p. 291.
  99. Id., p. 301.
  100. Id.
  101. 418 U.S., (1974), p. 153.
  102. Id., p. 160.
  103. Indianapolis & Marion County, Ind. Ordinance 24 (May 3, 1984), amended by Indianapolis & Marion County, Ind. Ordinance 35 (June 15, 1984), at S16-1 (b) (8). The city Council in Minneapolis, Minnesota, passed a similar ordinance that was vetoed by the mayor.
  104. Id. S16-3(9).
  105. Id. S16-17.
  106. Id. S16-3 (g) (4)-(7).
  107. 598 F. Supp. (S.D. Ind. 1984).
  108. Id., pp. 1331-31.
  109. Id., p. 1335.
  110. Id., pp. 1333-34.
  111. Id., p. 1337.
  112. American Booksellers Ass'n v. Hudnut, 771 F.2d 323(7th Cir. 1985).
  113. Id., p. 329.
  114. Id., p. 333.
  115. Id., p. 325.
  116. Hudnut v. American Booksellers Ass'n No. 85-1090 Slip op. Feb. 24, 1986.