A visitor to Indianapolis this summer expressed concern that a Reagan appointee to the federal bench was going to make the first constitutional judgment anywhere in the nation on a wholly new approach to banning alleged pornography.
The ordinance, passed by the Indianapolis City Council, claimed to be a civil rights measure. Certain forms of pornography, said the council, discriminate against women by degrading them. Accordingly, there is a compelling government interest in purging the city of this evil.
The federal judge hearing the case was even newer than the "civil rights" theory at issue. Sarah Evans Barker had been sworn in on March 30 of this year, the first woman to serve as a federal District Court judge in Indiana. She had previously been the U.S. attorney, and before that had been active in Republican politics.
In her few months on the bench before her first historic case, Barker struck observers as quite unassuming, sometimes witty, and having, as one litigant put it, an overwhelming smile. She also became known for asking attorneys very hard questions and not allowing them to sidestep those questions.
On July 30, during a hearing in the anti-pornography case, the judge so kept after an assistant Indianapolis corporation counsel that the young woman fainted away. Barker called a 10-minute recess, and, when the arguments resumed, the judge took care to put the revived attorney for the city at ease. When months passed without a decision by Barker, some Hoosier civil libertarians became uneasy. But on Nov. 19, in a 58-page finding, Sarah Evans Barker, with precise and ordered passion, demolished the "civil rights" approach to suppressing speech designed by University of Minnesota Law Professor Catharine MacKinnon. It is an approach that has, in various cities, created political coalitions of fundamentalist religious groups and some feminists (other feminists, however, oppose censorship as a way to equality). Had Barker not struck down the Indianapolis ordinance, at least 10 other municipalities might well have passed similar laws by next summer.
Part of the MacKinnon design, as woven into the Indianapolis ordinance, is the definition of pornography as "the graphic sexually explicit subordination of women, whether in pictures or in words." Those writers, whose works could, therefore, have been exiled from Indianopolis, range from the authors (or Author) of the Old Testament to William Faulkner. This definition of pornography, and its slippery subsections, were far too vague and overbroad to meet the most minimal due process requirements of the Constitution, Barker said.
As for the sleight-of-hand "civil rights" rationale for the ordinance, Barker noted that if free speech can be regulated on the basis of "protecting women from humiliation and degradation," other "legislative bodies, finding support here," could also act to suppress other degrading material on the ground that it discriminates against particular ethnic or religious groups, or the handicapped. The First Amendment, she noted, could hardly survive such mercilessly tender-hearted narrowing of protected speech.
Barker then directly addressed those feminists who have heralded the Indianapolis ordinance as an Emancipation Proclamation: "In terms of altering sociological patterns, free speech, rather than being the enemy, is a long-tested and worthy ally. 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."
She also spoke, as James Madison often had, of our greatest enemy -- us. That is, majoritarianism. "To permit every interest group, especially those who claim to be victimized by unfair expression, their own legislative exceptions to the First Amendment so long as they succeed in obtaining a majority of legislative votes in their favor demonstrates the potentially predatory nature of what defendants seek through this Ordinance."
The next question is: Can this Hoosier judge with fine Republican credentials someday make the short list of possible appointees to the Supreme Court, which is getting low in its reserve casks of First Amendment spirits?