Give-and-Take on Pornography

By Richard Lacayo

Sometimes the U.S. Supreme Court giveth. Sometimes it taketh away. Last week it did both when it looked at the pestiferous question of pornography. First it concluded that the city of Indianapolis had acted unconstitutionally when it sought to prohibit some pornography as a form of discrimination against women. Then the next day the court ruled that cities or towns are free to use zoning ordinances to confine adult-movie theaters to the fringes of towns.

The Indianapolis case may spell the end of attempts to attack porn as sex discrimination, a tactic that in recent years had the unusual effect of allying some left-leaning feminists and conservative moralists. The idea was developed by Law Professor Catharine MacKinnon, a visiting scholar at Stanford, and Andrea Dworkin, a New York feminist writer (Pornography: Men Possessing Women). They contend that by enforcing a subordinate image of women, porn promotes violence against them and hinders their chances of achieving equal opportunity. In the past the court has permitted restrictions on free speech when a "compelling" government objective is involved--for instance, to protect children by outlawing child pornography. Dworkin argues that women's rights are likewise compelling. "If women are ever going to achieve civil equality in this country," she insists, "we cannot have an $8 billion-a-year entertainment industry based on their brutalization."

But the problem facing the Justices was that laws aimed at the content of pornography inevitably restrict expression, and the repellent and the worthwhile can be so closely braided that no amount of linguistic hairsplitting can untangle them. Drafted with the assistance of MacKinnon and Dworkin, the Indianapolis ordinance targeted materials that showed women in bondage or that treated pain and humiliation as sexual turn-ons. But more sweepingly, it forbade showing women "as sexual objects for domination, conquest, violation, exploitation, possession or use." A federal appeals court was concerned that the ordinance might encompass everything from the ! Iliad to Barbarella, to say nothing of Leda and the Swan.

Without hearing arguments or issuing an opinion, the high court voted 6 to 3 to uphold that decision. (The dissenters wanted to hear arguments.) In the appeals-court ruling, Judge Frank Easterbrook, a Reagan appointee, agreed that depictions of subordination perpetuate subordination. But, he wrote, this did not permit Indianapolis to hold that materials presenting women in sexual encounters premised on equality were lawful, no matter how explicit, while those treating them in the "disapproved way" were unlawful, no matter how valuable the whole work. Said Easterbrook: "This is thought control."

Last week's action outraged antiporn forces from left to right. Said MacKinnon: "Six men on the Supreme Court stood up for organized crime." Anti-ERA Campaigner Phyllis Schlafly inveighed, "It allows pornographers to clothe themselves in the First Amendment while they're undressing women." But most legal observers, including those in the Administration, were unsurprised. In light of the free-speech issues, Deputy Attorney General D. Lowell Jensen said, "the result was pretty well foretold."

If the court declined to allow new limits on what pornographers may say, it did not object to tougher limits on where they may say it. The court voted 7 to 2 to uphold a zoning ordinance passed by the small Seattle suburb of Renton (pop. 32,000) that prohibited the showing of explicit films in theaters within 1,000 ft. of a school, church or residence. The law was acceptable, said Justice William Rehnquist, because it served the legitimate governmental purpose of preserving the quality of urban life while allowing reasonable alternative locations to the theater operators.

The operators objected that the law barred them from the city's downtown, forcing them to unprofitable locations. Well, said the court, the town has no obligation to ensure "sites at bargain prices." The court's ruling in effect permits localities to scatter adult theaters, as Detroit has, or to concentrate them, as Boston has in its "combat zone." After the decision was announced, the mayor's office in Renton was deluged with more than 100 calls from officials of other cities looking for tips on zoning-ordinance design.

Authorities have a number of other legitimate and quasi-legitimate weapons to use against pornographers. To begin with, hard-core pornography, or obscenity, as it is defined by the Supreme Court, is not protected by the Constitution. In Los Angeles, pandering statutes normally aimed at pimps have been invoked to prosecute those who hire actors or models to perform sex acts for the camera. In Memphis, as in many other cities, prosecutors and police regularly harass porn dealers by hauling them in, then letting them go. Some local health codes are also used to keep porn establishments in check.

The court's latest actions will hardly dampen official antiporn efforts. Indeed, as part of the ongoing work of the Attorney General's Commission on Pornography, Edwin Meese last week approved a new $100,000 study of porn's antisocial impact. But the court did seem to signal what it believes is a constitutional approach. As UCLA Law Professor Henry McGee describes it, the emerging doctrine appears to be "If people want it, they can have it. But they shouldn't subject everyone else to it."

With reporting by David Beckwith/Washington and Meg Grant/Seattle