American Booksellers Ass'n, Inc. v. Hudnut
| Decision Date | 19 November 1984 |
| Docket Number | No. IP 84-791C.,IP 84-791C. |
| Parties | AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. William H. HUDNUT, III, Mayor of the City of Indianapolis, et al., Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
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Richard Kammen, McClure McClure & Kammen, Robert G. Elrod, Elrod, Elrod & Mascher, Indianapolis, Ind., Michael A. Bamberger, P.C., Jeffrey A. Mitchell, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, New York City, Richard W. Cardwell, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, Ind., Burton Joseph, Barsy & Joseph, Chicago, Ill., John H. Weston, Brown, Weston & Sarno, Beverly Hills, Cal., Franklin I. Miroff, Ancel, Miroff & Frank, Sheila Suess Kennedy, Mears, Crawford, Kennedy & Eichholtz, Indianapolis, Ind., for plaintiffs.
Charles S. Sims, Burt Neuborne, Harriet Pilpel, New York City, amicus curiae for plaintiff American Civil Liberties Union.
John Wood, Bamberger & Feibleman, Indianapolis, Ind., amicus curiae for plaintiff Indiana Civil Liberties Union.
Don H. Reuben, James A. Klenk, Reuben & Proctor, Chicago, Ill., amicus curiae for plaintiffs Indiana Library Ass'n, Indiana Library Trustee Ass'n.
John P. Ryan, Corp. Counsel, Mark Dall, Kathryn Watson, Asst. Corp. Counsels, City of Indianapolis, Legal Div., Indianapolis, Ind., for defendants.
Catharine A. MacKinnon, University of Minnesota Law School, Minneapolis, Minn., amicus curiae for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter comes before the Court on the June 22, 1984 motion of the plaintiffs for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the issues of their June 20, 1984 second amended complaint and defendants' June 21, 1984 answer thereto. The motion became fully briefed with the filing of the movants' reply on July 11, 1984. Additionally, two amicus curiae were permitted to file briefs in this action. On July 30, 1984, oral arguments were presented to the Court, at which time defendants by oral motion recast their opposing brief into a cross-motion for summary judgment, which motion the Court granted.
Based upon the undisputed facts, the parties' and amicus briefs and oral argument of counsel, the Court now submits its findings of fact and conclusions of law. In accordance therewith, plaintiffs' motion for summary judgment is GRANTED and defendants' cross-motion for summary judgment is DENIED, and the challenged Ordinance is declared to be unconstitutional.
1984, respectively, which amended the Code of Indianapolis and Marion County, Indiana, Chapter 16, "Human Relations and Equal Opportunity" (hereinafter "the Ordinance"). The original Ordinance was signed into law by Indianapolis Mayor William H. Hudnut, III, on May 1, 1984, and the amendments thereto on June 15, 1984.
2. The plaintiff, American Booksellers Association, Inc., is a trade association composed of booksellers located throughout the United States. The Association has approximately 5,200 members, consisting of private bookstores, department store bookstores, and chain bookstores, some of which are located in Indianapolis.
3. The plaintiff, Association for American Publishers Inc., is a trade association organized under the laws of the State of New York. It is the major national association of publishers of general books, textbooks and educational materials in the United States. Its members publish the vast majority of all general, educational, and religious books and materials produced in the United States, which are sold and distributed in book stores, department stores, drug stores, news-stands and other outlets throughout the United States, some of which are in Indianapolis. The Association has in excess of 300 members, virtually all of which publish materials sold in Indianapolis.
4. The plaintiff, Council for Periodical Distributors Associations, is a national trade association, having over 500 independent, local wholesale distributors of magazines, comic books, paperback books and newspapers, some of which are located or do business in Indianapolis.
5. The plaintiff, Freedom to Read Foundation, a non-profit organization supported by voluntary donations, was established in 1969 by the American Library Association to promote and defend First Amendment rights, to foster libraries as institutions wherein First Amendment freedoms are fulfilled, to support the right of libraries to include in their collections and make available any stock which they may legally acquire, and to seek legal precedents for the freedom to read on behalf of all citizens.
6. The plaintiff, International Periodical Distributors Association, Inc., is the trade association for the principal national periodical distributors engaged in the business of distributing or arranging for the distribution of paperback books and periodicals to wholesalers throughout the United States for ultimate distribution to retailers and the public.
7. The plaintiff, Koch News Company, a partnership operating under the partnership laws of the State of Indiana, is the largest wholesale distributor in Indianapolis of periodicals, hardback books, paperback books, Bibles, school books and children's books.
8. The plaintiff, National Association of College Stores, Inc., is a trade association of college stores located throughout the United States. The Association has approximately 2,500 members, some of which are in Indianapolis.
9. The plaintiff Omega Satellite Products Co., a partnership operating under the partnership laws of the State of Indiana, is a distributor in Indianapolis of television programming received from satellite transmissions.
10. The plaintiff, Video Shack, Inc., is an Indiana corporation which sells and rents motion pictures and other programming on video cassettes at three retail locations in Indianapolis.
11. The plaintiff, Kelly Bentley, is an adult female resident and citizen of Indianapolis, and a reader and viewer of First Amendment protected material.
12. The defendants are the individual City-County officials responsible for enforcement and/or implementation of the Ordinance.
13. Public hearings were held by the Administration Committee of the Council and by the Council in connection with the passage of the Ordinance at which testimony was given and exhibits were submitted.
14. The Council made the following findings of legislative fact, as set forth in the Ordinance as Section 16-1(a)(2):
15. The stated purpose of the Ordinance is set forth in Section 16-1(b)(8), which provides:
16. "Pornography" is defined in the Ordinance as follows:
17. Section 16-15 of the Ordinance makes the following discriminatory practices unlawful:
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