Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW BARKER, District Judge. 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. Findings of Fact 1. On April 23, 1984, and June 11, 1984, the Indianapolis-Marion County City-County Council (hereinafter “Council”) passed General Ordinances No. 24, 1984 and 35, 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-l(a)(2): “Sec. 16-1. Findings, policies and purposes. (a) Findings. The City-County Council hereby makes the following findings: sfc sfc * sfc sfc (2) Pornography is a discriminatory practice based on sex which denies women equal opportunities in society. Pornography is central in creating and maintaining sex as a basis for discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women’s opportunities for equality of rights in employment, education, access to and use of public accommodations, and acquisition of real property; promote rape, battery, child abuse, kidnapping and prostitution and inhibit just enforcement of laws against such acts; and contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods.” 15. The stated purpose of the Ordinance is set forth in Section 16-l(b)(8), which provides: “(b) It is the purpose of this ordinance to carry out the following policies of the City of Indianapolis and Marion County: sfc >fc ifc sfc sfc Sfc (8) To prevent and prohibit all discriminatory practices of sexual subordination or inequality through pornography.” 16. “Pornography” is defined in the Ordinance as follows: “(q) Pornography shall mean the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury, abusement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; and (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display. The use of men, children, or transsexuals in the place of women in paragraphs (1) through (6) above shall also constitute pornography under this section.” Section 16-3(q). 17. Section 16-15 of the Ordinance makes the following discriminatory practices unlawful: “(4) Trafficking in pornography: The production, sale, exhibition, or distribution of pornography. A. City, state, and federally funded public libraries or private and public university and college libraries in which pornography is available for study, including on open shelves, shall not be construed to be trafficking in pornography, but special display presentations of pornography in said places is sex discrimination. (B) The formation of private clubs or associations for purposes of trafficking in pornography is illegal and shall be considered a conspiracy to violate the civil rights of women. (C) This paragraph (4) shall not be construed to make isolated passages or isolated parts actionable. (5) Coercion into a pornographic performance: coercing, intimidating or fraudulently inducing any person, including a man, transsexual, into performing for pornography, which injury may date from any appearance or sale of any product(s) of such performance. (A) Proof of the following facts or conditions shall not constitute a defense: I. That the person is a woman; or II. That the person is or has been a prostitute; or III. That the person has attained the age of majority; or IV. That the person is connected by blood or marriage to anyone involved in or related to the making of the pornography; or V. That the person has previously had, or been thought to have had, sexual relations with anyone, including anyone involved in or related to the making of the pornography; or VI. That the person has previously posed for sexually explicit pictures for or with anyone, including anyone involved in or related to the making of the pornography at issues; or VII. That anyone else, including a spouse or other relative, has given permission on the person’s behalf; or VIII. That the person actually consented to a use of the performance that is changed into pornography; or IX. That the person knew that the purpose of the acts or events in question was to make pornography; or X. That the person demonstrated no resistance or appeared to cooperate actively in the photographic sessions or in the sexual events that produced the pornography; or XI. That the person signed a contract, or made statements affirming a willingness to cooperate in the production of pornography; or XII. That no physical force, threats, or weapons were used in the making of the pornography; or XIII. That the person was paid or otherwise compensated.” (6) Forcing pornography on a person: The forcing of pornography on any woman, man, child, or transsexual in any place of employment, in education, in a home, or in any public place. (7) Assault or physical attack due to pornography: The assault, physical attack, or injury of any woman, man, child, or transsexual in a way that is directly caused by specific pornography.” Section 16-3(g)(4)-(7). 22. Under the Ordinance, Section 16-3(g)(8), it is no defense to the discriminatory practices quoted in Finding 17 above that the respondent did not know or intend that the materials were pornography or sex discrimination, except where money damages are sought against respondent: “(8) Defenses. Where the materials which are the subject matter of a complaint under paragraphs (4), (5), (6), or (7) of this subsection (g) are pornography, it shall not be a defense that the respondent did not know or intend that the materials were pornography or sex discrimination; provided, however, that in the cases under paragraph (g)(4) of Section 16-3, no damages or compensation for losses shall be recoverable unless the complainant proves that the respondent knew or had reason to know that the materials were pornography. Provided, further, that it shall be a defense to a complaint under paragraph (g)(4) of Section 16-3 that the materials complained of are those covered only by paragraph (q)(6) of Section 16-3.” 19. Section 16-17 of the Ordinance sets forth the grounds for filing a complaint, who may file, and the persons against whom a complaint may be filed: “(a) A complaint charging that any person has engaged in or is engaging in a discriminatory practice prohibited by sections 16-14 and/or 16-15 may be filed with the office by any person claiming to be aggrieved by the practice, or by one or more members of the board or employees of the office who have reasonable cause to believe that a violation of sections 16-14 and 16-15 has occurred, in any of the following circumstances: ****** (6) In the cases of trafficing in pornography, coercion into pornographic performances, and assault or physical attack due to pornography (as provided in Section 16-3(g)(7)) against the perpetrators), maker(s), seller(s), exhibitors), or distributors). (7) In the case of forcing pornography on a person, against the perpetrator(s) and/or institution. (b) In the case of trafficking in pornography, any woman may file a complaint as a woman acting against the subordination of women and any man, child, or transsexual may file a complaint but must prove injury in the same way that a woman is injured in order to obtain relief under this chapter. (c) In the case of assault or physical attack due to pornograrphy, compensation for losses or an award for damages shall not be assessed against (1) makers), for pornography made, (2) distributors), for pornography distributed, (3) seller(s), for pornography sold, or (4) exhibitor(s) for pornography exhibited, pri- or to the effective date of this act.” 20. Once a complaint alleging a discriminatory practice has been filed, the Ordinance provides for an investigation of the alleged unlawful practice, and for an informal conference in an effort to eliminate such practice if there is reasonable cause to believe that any violation has occurred: “Sec. 16-24. Investigation and conciliation. (1) Investigation. Within ten (10) working days after the receipt of a complaint filed pursuant to this chapter, the chief officer shall initiate an investigation of the alleged discriminatory practice charged in the complaint. All such investigations shall be made by the office at the direction of the chief officer and may include informal conferences or discussions with any party to the complaint for the purpose of obtaining additional information or attempting to resolve or eliminate the alleged discriminatory practice by conciliation or persuasion. The office shall have the authority to initiate discovery, including but not limited to interrogatories, request for production of documents and subpoenas, on approval of the chief officer at any time within ten (10) working days after filing of a complaint. Any request by the office to compel discovery may be by appropriate petition to the Marion County circuit or superior courts. (2) Report of investigation; determination by panel. Unless the complaint has been satisfactorily resolved prior thereto, the chief officer shall, within thirty (30) working days after the date of filing of a complaint pursuant to section 16-17, report the results of the investigation made pursuant to subsection (1) to a panel of three (3) members of the board designated by the chairperson or vice-chairperson or pursuant to the rules of the board, which panel shall not include any member of the board who initiated the complaint, who might have participated in the investigation of the complaint, or who is a member of the complaint adjudication committee. The chief officer shall make a recommendation as to whether there is reasonable cause to believe that the respondent has violated sections 16-14 and/or 16-15. The chairperson, vice-chairperson or such other member of the panel so designated, may, for good cause shown, extend the time for making such report. Such extension thereof shall be evidenced in writing, and the office shall serve a copy of the extension on both the complainant and the respondent. The panel shall then determine by majority vote whether reasonable cause exists to believe that any respondent has violated sections 16-14 and/or 16-15. In making such a determination, the panel shall consider only the complaint, the response, if any, and the chief officer’s report; provided, however, the panel may request the chief officer to make a supplemental investigation and report with respect to any matter which it deems material to such determination. (3) Action when violation found. If the panel, pursuant to subsection (2) determines that reasonable cause exists to believe that any respondent has violated sections 16-14 and/or 16-15, it may direct the chief office to endeavor to eliminate the alleged discriminatory practice through a conciliation conference. At least one panel member shall be present at any conciliation conference at which both the complainant and respondent are present or represented. If the complaint is satisfactorily resolved through conciliation, the terms of any agreement reached or undertaking given by any party shall be reduced to writing and signed by the complainant, respondent and the chief officer. Any disagreement between the respondent and the chief office in regard to the terms or conditions of a proposed conciliation agreement may be referred to the panel which considered the complaint, and the decision of the panel with respect to such terms or conditions shall be final for purposes of conciliation proceedings under this subsection, but shall not be binding upon the respondent without his written consent thereto. No action taken or statement made in connection with any proceedings under this subsection, and no written conciliation agreement or any of the terms thereof, shall be made public by the board or any member thereof, or any agent or employee of the officer, without the written consent of the parties, nor shall any such action, statement or agreement be admissible in evidence in any subsequent proceedings; provided, however, the board or officer may institute legal proceedings under this chapter for enforcement of any written agreement or undertaking executed in accordance with this subsection.” Section 16-24. 21. If the dispute has not been satisfactorily resolved through the informal proceedings outlined in Finding 20, above, the Complaint Adjudication Committee may hold a public hearing, which is governed by the procedure set forth in Section 16-26, which provides: “Sec. 16-26. Hearings, findings and recommendations when conciliation not effected. (a) Hearing to be held; notice. If a complaint filed pursuant to this article has not been satisfactorily resolved within a reasonable time through informal proceedings pursuant to section 16-24, or if the panel investigating the complaint determines that a conciliation conference is inappropriate under the circumstances surrounding the complaint, the complaint adjudication committee may hold a public hearing thereon upon not less than ten (10) working days’ written notice to the complainant or other aggrieved person, and to the respondent. If the respondent has not previously filed a written response to the complaint, he may file such response and serve a copy thereof upon the complainant and the office not later than five (5) working days prior to the date of the hearing. (b) Powers; rights of parties at hearing. In connection with a hearing held pursuant to subsection (1), the complaint adjudication committee shall have power upon any matter pertinent to the complaint or response thereto, to subpoena witnesses and compel their attendance; to require the production of pertinent books, papers or other documents; and to administer oaths. The complainant shall have the right to be represented by the chief officer or any attorney of his/her choice. The respondent shall have the right to be represented by any attorney or any other person of his/her choice. The complainant and respondent shall have the right to appear in person at the hearing, to be represented by an attorney or any other person, to subpoena and compel the attendance of witnesses, and to examine and cross-examine witnesses. The complaint adjudication committee may adopt appropriate rules for the issuance of subpoenas and the conduct of hearings under this section. The complaint adjudication committee and the board shall have the power to enforce discovery and subpoenas by appropriate petition to the Marion County Circuit or superior courts. (c) Statement of evidence; exceptions; arguments. Within thirty (30) working days from the close of the hearing, the complaint adjudication committee shall prepare a report containing written recommended findings of fact and conclusions and file such report with the office. A copy of the report shall be furnished to the complainant and respondent, each of whom shall have an opportunity to submit written exceptions within such time as the rules of the complaint adjudication committee shall permit. The complaint adjudication committee may, in its discretion, upon notice to each interested party hear further evidence or argument upon the issues presented by the report and exceptions, if any. (d) Findings of fact; sustaining or dismissing complaint. If, upon the preponderance of the evidence, the committee shall be of the opinion that any respondent has engaged or is engaging in a discriminatory practice in violation of the chapter, it shall state its findings of fact and conclusions and serve a copy thereof upon the complainant and the respondent. In addition, the committee may cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful discriminatory practice and requiring such person to take further affirmative action as will effectuate the purposes of this chapter, including but not limited to the power to restore complainant’s losses incurred as a result of discriminatory treatment, as the committee may deem necessary to assure justice; to require the posting of notice setting forth the public policy of Marion County concerning equal opportunity and respondent’s compliance with said policy in places of public accommodations; to require proof of compliance to be filed by respondent at periodic intervals; to require a person who has been found to be in violation of this ordinance, and who is licensed by a city or county agency authorized to grant a license, to show cause to the licensing agency why his license should not be revoked or suspended. If, upon the preponderance of the evidence, the committee shall be of the opinion that any respondent has not engaged in a discriminatory practice in violation of this chapter it shall state its findings of fact and conclusions and serve a copy thereof upon the complainant and the respondent, and dismiss the complaint. Findings and conclusions made by the committee shall be based solely upon the record of the evidence presented at the hearing. (e) Appeal to the board. Within thirty (30) working days after the issuance of findings and conclusions by the committee, either the complainant or the respondent may file a written appeal of the decision of the committee to the board; however, in the event that the committee requires a respondent to correct or eliminate a discriminatory practice within a time period less than thirty (30) working days, then that respondent must file his/her appeal within that time period. After considering the record of the evidence presented at the hearing and the findings and conclusions of the committee, the board may affirm the decision of the committee and adopt the findings and conclusions of the committee, or it may affirm the decision of the committee and make supplemental findings and conclusions of its own, or it may reverse the decision of the committee and make findings of fact and conclusions to support its decision. The board may also adopt, modify or reverse any relief ordered by the committee. The board must take any of the above actions within thirty (30) working days after the appeal is filed. (f) Members of board who are ineligible to participate. No members of the board who initiated a complaint under this chapter or who participated in the investigation thereof shall participate in any hearing or determination under this section as a member of either a hearing panel, the complaint adjudication committee or of the board. (g) Appliciability of state law; judicial review. Except as otherwise specifically provided in this section or in rules adopted by the board of the complaint adjudication committee under this chapter, the applicable provisions of the Administrative Adjudication Act, IC 4-22-1, shall govern the conduct of hearings and determinations under this section, and findings of the board hereunder shall be subject to judicial review as provided in that act.” 22. Relevant provisions of the Administrative Adjudication Act provide that “any party or person aggrieved by an order or determination made by any such agency shall be entitled to a judicial review thereof ____” I.C. 4-22-l-14(a). Review may be obtained by filing a verified petition in the county in which the aggrieved person resides, or in any county in which the order is to be enforced, within fifteen (15) days after the agency’s determination. I.C. 4-22-l-14(a) and (b). 23. If, after a finding that the respondent has engaged in a discriminatory practice, the respondent has failed to correct or eliminate the discriminatory practice as prescribed by the board, the board may seek judicial enforcement of its decision by filing a complaint requesting temporary or permanent injunctive relief in its own name in the Marion County circuit or superior courts: “Sec. 16-27. Court enforcement. (a) Institution of action. In any case where the board or the committee has found that a respondent has engaged in or is engaging in a discriminatory practice in violation of sections 16-14 and/or 16-15, and such respondent has failed to correct or eliminate such discriminatory practice within the time limit prescribed by the board or the committee and the time limit for appeal to the board has elapsed, the board may file in its own name in the Marion County circuit or superior courts a complaint against the respondent for the enforcement of section 16-26. Such complaint may request such temporary or permanent injunctive relief as may be appropriate and such additional affirmative relief or orders as will effectuate the purposes of this chapter and as may be equitable, within the powers and jurisdiction of the court.” 24. An aggrieved party, after filing a complaint may seek equitable relief through the courts: “(c) Temporary judicial relief upon filing of complaint. Upon the filing of a complaint pursuant to section 16-17 by a person claiming to be aggrieved, the chief officer, in the name of the board and in accordance with such procedures as the board shall establish by rule, may seek temporary orders for injunctions in the Marion County circuit or superior courts to prevent irreparable harm to the complainant, pending resolution of the complaint by the office, complaint adjudication committee and the board.” Section 16-27(c). 25. Section 16-27(e) of the Ordinance provides that in complaints involving discrimination based on pornography, judicial review shall be de novo: “(e) Trial de novo upon finding of sex discrimination related to pornography. In complaints involving discrimination through pornography, judicial review shall be de novo. Notwithstanding any other provision to the contrary, whenever the board or committee has found that a respondent has engaged in or is engaging in one of the discriminatory practices set forth in paragraph (g)(4) of Section 16-3 or as against a seller, exhibitor or distributor under paragraph (g)(7) of Section 16-3, the board shall, within ten (10) days after making such finding, file in its own name in the Marion County circuit or superior court an action for declaratory and/or injunctive relief. The board shall have the burden of proving that the actions of the respondent were in violation of this chapter. Provided, however, that ... in any complaint under paragraph (g)(4) of Section 16-3 or against a seller, exhibitor or distributar under paragraph (g)(7) of Section 16-3 no temporary or permanent injunction shall issue prior to a final judicial determination that said activities of respondent do constitute a discriminatory practice under this chapter. Provided further, that no temporary or permanent injunction under paragraph (g)(4) of Section 16-3 or against a seller, exhibitor or distributor under paragraph (g)(7) of Section 16-3 shall extend beyond such material(s) that, having been described with reasonable specificity by the injunction, have been determined to be validly proscribed under the ordinance.” 26. Any conclusions of law stated below, to the extent that it constitutes a finding of fact, is herein incorporated by reference as an additional finding of fact by the Court. Conclusions of Law 1. This Court has jurisdiction of this cause pursuant to 28 U.S.C. §§ 1331, 1343(3), and 1343(4), 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202, and the Court need not abstain from jurisdiction because the subject Ordinance is not susceptible to limiting constructions. 2. Because plaintiffs’ contentions are rooted in the First Amendment they have standing to challenge the constitutionality, of the Ordinance. 3. This case is sufficiently ripe for adjudication at this time, in that there exists a case or controversy within the meaning of Article III of the United States Constitution and the case law interpreting the same. 4. The Ordinance restricts pornography, and pornography as defined in the Ordinance is speech, not conduct. 5. The First Amendment protections extend to regulation of words and pictures, to the extent that they express ideas, and, therefore, constitute “speech,” as that term is used in the First Amendment to the United States Constitution. 6. Only speech which does not receive First Amendment protection, may be subject to government regulation, and the controls imposed by the Ordinance do not fall within one of those established categories of speech which may be limited by legislative action, such as “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words,” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed.2d 1031 (1942), or child pornography. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). 7. The Ordinance’s proscription of “pornography” most clearly resembles proscriptions of “obscenity,” which are subject to regulation by government, but it fails to meet the legal definition of obscenity and is, therefore, a restriction on speech that has traditionally been deemed protected by the First Amendment. 8. Since the Ordinance sweeps beyond unprotected obscenity, the expressed purpose of the governmental regulation of pornography is the suppression of protected speech. 9. The proscriptions against pornography as defined in the Ordinance survive constitutional scrutiny only if the State’s interest in prohibiting sex discrimination is so compelling as to outweigh the constitutionally protected interest of free speech, and the Court concludes as a matter of law that it does not outweigh the interest of free speech. 10. Assuming arguendo that the state’s interest in prohibiting sex discrimination does outweigh the First Amendment interest of free speech, the Ordinance is nonetheless unconstitutional for the following reasons: (a) it is unconstitutionally vague in that it fails to give fair notice to a person of average intelligence regarding what material is intended to be proscribed; and (b) as applied to the type of activity described in Section 16-3(g)(5) and (6), it constitutes an unconstitutional prior restraint on speech because it fails to provide procedural safeguards to reduce the danger of suppressing speech otherwise protected by the First Amendment. 11. The law is with plaintiffs on all claims asserted in Count I. The Court need not reach the assertions in Counts II, III, IV, and V. However, if defendants had prevailed on Count I, the law is with plaintiffs on all claims asserted in Counts II, III, and V. As to Count IV, the law is with plaintiffs as applied to Section 16-3(g)(5) and (6) and with the defendants as applied to Section 16-3(g)(4) and (7). 12. Plaintiffs are entitled to permanent injunctive and declaratory relief, costs of litigation, and reasonable attorneys’ fees. 13. Any finding of fact stated above, to the extent that it constitutes a conclusion of law, is herein incorporated by reference as an additional conclusion of law by the Court. MEMORANDUM This case comes to the Court amidst heated public and private debate over the problems of pornography and sex discrimination in American society. In apparent response to the perceived urgency and seriousness of these issues, the Indianapolis City-County Council debated and enacted an ordinance with subsequent amendments which sought to deal with both of these conditions by limiting the availability in Indianapolis of materials which depict the sexually explicit subordination of women. The Council defined pornography as the graphic depiction of the sexually explicit subordination of women and then declared pornography a discriminatory practice. By way of outlawing this practice, it then forbade most of the specific acts necessary to produce, sell, or distribute such material. It is difficult to quarrel either with the Council’s underlying concern (that pornography and sex discrimination are harmful, offensive, and inimical to and inconsistent with enlightened approaches to equality) or with its premise that some legislative controls are in order. But beyond that, it is in fact outside the rightful purview of this Court to enter the public debate over whether and to what extent these eonditions constitute .a real social harm. It is also beyond the purview of the Court to substitute its judgment for that of the legislative body, either in defining the acceptable community standards in these areas or in imposing appropriate sanctions for behavior which violate those standards. Thus, the Court’s duty in this circumstance is a narrow one. That duty is to assess the constitutionality of the legislative enactment: to determine whether the Ordinance, however well-motivated or otherwise meritorious it may be, unconstitutionally diminishes, violates, or otherwise derrogates our fundamental freedoms as a people. This litigation, therefore, requires the Court to weigh and resolve the conflict between the First Amendment guarantees of free speech, on the one hand, and the Fourteenth Amendment right to be free from sex-based discrimination, on the other hand. In addition, the Court must determine whether the Indianapolis enactment meets the due process requirements of the Fifth and Fourteenth Amendments. The plaintiffs in this lawsuit request the Court “to preliminarily and permanently enjoin enforcement of, and to declare facially unconstitutional, void and of no effect, City-County General Ordinances No. 24 and 35, 1984 (together hereinafter referred to as the “Ordinance”), on the grounds that it is unconstitutional under the United States Constitution. The Ordinance was passed by the City-[County] Council, City of Indianapolis on April 23, 1984, and amended on June 11, 1984, and was signed by the Mayor of Indianapolis on May 1, 1984, and the amendments, on June 15, 1984. Plaintiffs have cited numerous reasons to support their claim for relief. They first contend that the Ordinance severely restricts the availability, display and distribution of constitutionally protected, non-obscene materials, in violation of the First and Fourteenth Amendments. More specifically, they claim that the regulatory restraints of the Ordinances are not limited merely to unprotected speech, such as obscenity. As a result, plaintiffs contend that they will be forced under the Ordinance to remove from availability in Indianapolis materials which are in fact protected by the First Amendment. Plaintiffs also contend that in seeking to ban speech directed to the general public because it is highly offensive to many, the Ordinances violate established Supreme Court precedents which preclude the banning of speech simply because its contents may be socially or politically offensive to the majority. The third contention of plaintiffs is that the Ordinance fails to provide fair notice to the residents of Indianapolis, and to those doing business there, as to what is covered or exempted. Because of this, the Ordinance is said to be unconstitutionally vague, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. It is also alleged that the encroachment of the Ordinance into areas of protected expression has an unconstitutionally “chilling effect” on the exercise by plaintiffs of their rights to free speech under the First Amendment. Plaintiffs furthermore charge that the Ordinance, by providing for “cease and desist” orders to enforce its proscriptions, constitutes a prior restraint which impermissibly allows a governmental Board to act as censor in determining what is and is not protected material under the First Amendment, and to control what materials may be written, distributed, sold, viewed or read in Indianapolis. Finally, plaintiffs contend that the Ordinance interferes with the free flow of constitutionally protected books, periodicals, motion pictures, and television programs across state lines, in violation of the Commerce Clause of the United States Constitution, Article I, Section 8, and the laws thereunder which Congress has promulgated. The defendants admit in their answer that the scope of the Ordinance goes beyond regulating obscene materials. However, they assert, such action does not violate the Constitution. Defendants deny every other allegation that the plaintiffs’ rights as guaranteed by the United States Constitution are violated by this Ordinance. I. JURISDICTION: STANDING and RIPENESS Before turning to a discussion of the constitutionality of the Ordinance, it is first necessary to decide whether the plaintiffs have standing to sue, and, if so, whether the case itself is ripe for adjudication. As mentioned above, the plaintiffs complain that the Ordinance fails to define adequately the type of material intended to be regulated, that it permits unconstitutional prior restraints on speech, and that it is vague and overbroad, all in violation of the First Amendment. Because the plaintiffs’ “claims are rooted in the First Amendment, they are entitled to rely on the impact of the [Ordinance] on the expressive activities of others as well as their own.” Shad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). When there are claims based on vagueness and overbreadth, case law “firmly establishes” that plaintiffs do in fact have standing to challenge the legislation. See Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); See also, Shad, supra, 452 U.S. at 66, 101 S.Ct. at 2181; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). In addition, the complaint makes it clear that plaintiffs’ interests are directly affected by the challenged Ordinance, and the Court does here so find. Based on these principles and findings the Court determines that the plaintiffs have standing to challenge the constitutionality of the Ordinance, both in their own individual capacities, and on behalf of others not presently before the Court but who may be similarly situated. Besides challenging standing, the defendants also contest the propriety of adjudicating these issues at this time, claiming no substantial controversy exists between the parties. Defendants correctly point out that “[t]he basic inquiry is whether the ‘conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.’ ” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (quoting Railway Mail Association v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945)) (other citations omitted). However, to establish a “case or controversy” under Article III of the Constitution, plaintiffs need not necessarily be the subjects of an administrative or judicial proceeding at the time the lawsuit is initiated. Babbitt, supra, 442 U.S. 297-99, 99 S.Ct. at 2308-09; Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497, 500 (7th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). See also, Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Accordingly, the Court finds that this action presents a justiciable case or controversy. Plaintiffs have alleged that the material they sell, distribute, and exhibit falls within the Ordinance, as best they can determine. The fact that the City-County Council amended the initially-passed Ordinance during the pendency of this lawsuit, also “indicates more than a broad policy that it will enforce this law generally.” Maciejewski, supra, 631 F.2d at 500. Defendants, in fact, have given no indication that they will not enforce the Ordinance if this Court’s stay is lifted and the new law is allowed to go into effect. “Under such circumstances, this Court does not feel it ‘necessary that [plaintiffs] first expose [themselves] to actual ... prosecution to be entitled to challenge a statute [which they claim] deters the exercise of [their] constitutional rights.’ ” NATCO Theatres v. Ratner, 463 F.Supp. 1124, 1127 (S.D.N.Y.1979), quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). See also Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 455, 50 L.Ed.2d 397 (1976). II. FIRST AMENDMENT REQUIREMENTS This Ordinance cannot be analyzed adequately without first recognizing this: the drafters of the Ordinance have used what appears to be a legal term of art, “pornography,” but have in fact given the term a specialized meaning which differs from the meanings ordinarily assigned to that word in both legal and common parlance. In Section 16-3(v) (page 6), the Ordinance states: “Pornography shall mean the sexually explicit subordination of women, graphically depicted, whether in pictures or in words, that includes one or more of the following: ...” There follows at that point a listing of five specific presentations of women in various settings which serve as examples of “pornography” and as such further define and describe that term under the Ordinance. As is generally recognized, the word “pornography” is usually associated, and sometimes synonomous, with the word, “obscenity.” “Obscenity” not only has its own separate and specialized meaning in the law, but in laymen’s use also, and it is a much broader meaning than the definition given the word “pornography” in the Ordinance which is at issue in this action. There is thus a considerable risk of confusion in analyzing this ordinance unless care and precision are used in that process. The Constitutional analysis of this Ordinance requires a determination of several underlying issues: first, the Court must determine whether the Ordinance imposes restraints on speech or behavior (content versus conduct); if the Ordinance is found to regulate speech, the Court must next determine whether the subject speech is protected or not protected under the First Amendment; if the speech which is regulated by this Ordinance is protected speech under the Constitution, the Court must then decide whether the regulation is constitutionally permissible as being based on a compelling state interest justifying the removal of such speech from First Amendment protections. A. Do the Ordinances regulate speech or behavior (content or conduct)? It appears to be central to the defense of the Ordinance by defendants that the Court accept their premise that the City-County Council has not attempted to regulate speech, let alone protected speech. Defendants repeat throughout their briefs the incantation that their Ordinance regulates conduct, not speech. They contend (one senses with a certain sleight of hand) that the production, dissemination, and use of sexually explicit words and pictures is the actual subordination of women and not an expression of ideas deserving of First Amendment protection. (Defendants’ Memorandum In Opposition To Plaintiffs’ Motion For Summary Judgment, pp. 17-21). Defendants claim support for their theory by analogy, arguing that it is an accepted and established legal distinction that has allowed other courts to find that advocacy of a racially “separate but equal” doctrine in a civil rights context is protected speech under the First Amendment though “segregation” is not constitutionally protected behavior. Accordingly, defendants characterize their Ordinance here as a civil rights measure, through which they seek to prevent the distribution, sale, and exhibition of “pornography,” as defined in the Ordinance, in order to regulate and control the underlying unacceptable conduct. The content-versus-conduct approach espoused by defendants is not persuasive, however, and is contrary to accepted First Amendment principles. Accepting as true the City-County Council’s finding that pornography conditions society to subordinate women, the means by which the Ordinance attempts to combat this sex discrimination is nonetheless through the regulation of speech. For instance, the definition of pornography, the control of which is the whole thrust of the Ordinance, states that it is “the sexually explicit subordination of women, graphically depicted, whether in pictures or in words, that includes one or more of the following:” (emphasis supplied) and the following five descriptive subparagraphs begin with the words, “Women are presented ...” (emphasis supplied). The unlawful acts and discriminatory practices under the Ordinance are set out in Section 16-3(g): “(4) Trafficking in pornography: the production, sale, exhibition, or distribution of pornography. [Subparagraphs omitted here] (5) Coercion into pornographic performance: coercing, intimidating or fraudulently inducing any person ... into performing for pornography____[Subparagraphs omitted here] (6) Forcing pornography on a person: (7) Assault or physical attack due to pornography: the assault, physical attack, . or injury of any woman, man, child or transsexual in a way that is directly caused by specific pornography____” Section (7), supra, goes on to provide a cause of action in damages against the perpetrators, makers, distributors, sellers and exhibitors of pornography and injunctive relief against the further exhibition, distribution or sale of pornography. In summary, therefore, the Ordinance establishes through the legislative findings that pornography causes a tendency to commit these various harmful acts, and outlaws the pornography (that is, the “depictions”), the activities involved in the production of pornography, and the behavior caused by or resulting from pornography. Thus, though, the purpose of the Ordinance is cast in civil rights terminology— “to prevent and prohibit all discriminatory practices of sexual subordination or inequality through pornography" (Section 16-l(b)(8)) — it is clearly aimed at controlling the content of the speech and ideas which the City-County Council has found harmful and offensive. Those words and pictures which depict women in sexually subordinate roles are banned by the Ordinance. Despite defendants’ attempt to redefine offensive speech as harmful action, the clear wording of the Ordinance discloses that they seek to control speech, and those restrictions must be analyzed in light of applicable constitutional requirements and standards. B. Is the speech regulated by the Ordinance protected or unprotected speech under the First Amendment? The First Amendment provides that government shall make no law abridging the freedom of speech. However, “the First and Fourteenth Amendments have never been thought to give, absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses.” Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). Courts have recognized only a “relatively few categories of instances,” id. at 19-20, 91 S.Ct. at 1785, where the government may regulate certain forms of individual expression. The traditional categories of speech subject to permissible government regulation include “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In addition, the Supreme Court has recently upheld legislation prohibiting the dissemination of material depicting children engaged in sexual conduct. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Having found that the Ordinance at issue here seeks to regulate speech (and not conduct), the next question before the Court is whether the Ordinance, which seeks to restrict the distribution, sale, and exhibition of “pornography” as a form of sex discrimination against women, falls within one of the established categories of speech subject to permissible government regulation, that is, speech deemed to be unprotected by the First Amendment. It is clear that this case does not present issues relating to profanity, libel, or “fighting words.” In searching for an analytical “peg,” the plaintiffs argue that the Ordinance most closely resembles obscenity, and is, therefore, subject to the requirements set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). (Plaintiffs’ Memorandum Of Law In Support Of Moving Plaintiffs’ Motion Pursuant to Federal Rules of Civil Procedure 56 for Summary Judgment, pp. 18-23). But the defendants admit that the scope of the Ordinance is not limited to the regulation of legally obscene material as defined in Miller. (See, Answer of Defendants William H. Hudnut, III, et al., ¶ 9). In fact, defendants concede that the “pornography” they seek to control goes beyond obscenity, as defined by the Supreme Court and excepted from First Amendment protections. Accordingly, the parties agree that the materials encompassed in the restrictions set out in the Ordinance include to some extent what have traditionally been protected materials. The test under Miller for determining whether material is legal obscenity is: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the purient interest, ...; (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.” (citations omitted) 413 U.S. at 24, 93 S.Ct. at 2615. It is obvious that this three-step test is not directly applicable the present case, because, as has been noted, the Ordinance goes beyond legally obscene material in imposing its controls. The restrictions in the Indianapolis ordinance reach what has otherwise traditionally been regarded as protected speech under the Miller test. Beyond that, the Ordinance does not speak in terms of a “community standard” or attempt to restrict the dissemination of material that appeals to the “prurient interest.” Nor has the Ordinance been drafted in a way to limit only distributions of “patently offensive” materials. Neither does it provide for the dissemination of works which, though “pornographic,” may have “serious literary, artistic, political or scientific value.” Finally, the Ordinance does not limit its reach to “hard core sexual conduct,” though conceivably “hard core” materials may be included in its proscriptions. Because the Ordinance spans so much more broadly in its regulatory scope than merely “hard core” obscenity by limiting the distribution of “pornography,” the proscriptions in the Ordinance intrude with defendants’ explicit approval into areas of otherwise protected speech. Under ordinary constitutional analysis, that would be sufficient grounds to overturn the Ordinance, but defendants argue that this case is not governed by any direct precedent, that it raises a new issue for the Court and even though the Ordinance regulates protected speech, it does so in a constitutionally permissible fashion. C. Does established First Amendment law permit the regulation provided for in the Ordinance of otherwise protected speech? In conceding that the scope of this Ordinance extends beyond constitutional limits, it becomes clear that what defendants actually seek by enacting this legislation is a newly-defined class of constitutionally unprotected speech, labeled “pornography” and characterized as sexually discriminatory- Defendants vigorously argue that Miller is not the “ ‘constitutional divide’ separating protected from unprotected expression in this area.” (Defendants’ Memorandum In Opposition To Plaintiffs’ Motion For Summary Judgment, pp. 27-31). Defendants point to three cases which allegedly support their proposition that Miller is not the exclusive guideline for disposing of pornography/ obscenity cases, and that the traditional obscenity test should not be applied in the present case. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Defendants first argue that the Court must use the same reasoning applied by the Supreme Court in New York v. Ferber, supra, which upheld a New York statute prohibiting persons from promoting child pornography by distributing material which depicted such activity, and carve out another similar exception to protected speech under the First Amendment. Defendants can properly claim some support for their position in Ferber. There the Supreme Court allowed the states “greater leeway” in their regulation of pornographic depictions of children in light of the State’s compelling interest in protecting children who, without such protections, are extraordinarily vulnerable to exploitation and harm. The Court stated in upholding the New York statute: “The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern: ____” 102 S.Ct. at 3355. The Supreme Court continued in Ferber by noting that the Miller standard for legal obscenity does not satisfy the unique concerns and issues posed by child pornography where children are involved; it is irrelevant, for instance, that the materials sought to be regulated contain serious literary, artistic, political or scientific value. In finding that some speech, such as that represented in depictions of child pornography, is outside First Amendment protections, the Ferber court stated: “When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.” Id. at 3358. Defendants, in the case at bar, argue that the interests of protecting women from sex-based discrimination are analogous to and every bit as compelling and fundamental as those which the Supreme Court upheld in Ferber for the benefit of children. But Ferber appears clearly distinguishable from the instant case on both the facts and law. As has already been shown, the rationale applied by the Supreme Court in Ferber appears intended to apply solely to child pornography cases. In Ferber, the court recognized “that a state’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ Globe Newspaper v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2621, 73 L.Ed.2d 248 (1982).” 102 S.Ct. at 3354. See also, FCC v. Pacifica Foundation, supra; Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 443, 88 L.Ed. 645 (1944); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Also, the obscenity standard in Miller is appropriately abandoned in child pornography cases because it “[does] not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitations of children.” Id. Since a state’s compelling interest in preventing child pornography outweighs an individual’s First Amendment rights, the Supreme Court held that “the states are entitled to greater leeway in the regulation of pornographic depictions of children.” Id. 102 S.Ct. at 3354. In contrast, the case at bar presents issues more far reaching than those in Ferber. Here, the City-County Council found that the distribution, sale, and exhibition of words and pictures depicting the subordination of women is a form of sex discrimination and as such is appropriate for governmental regulation. The state has a well-recognized interest in preventing sex discrimination, and, defendants argue, it can regulate speech to accomplish that end. But the First Amendment gives primacy to free speech and any other state interest (such as the interest of sex based equality under law) must be so compelling as to be fundamental; only then can it be deemed to outweigh the interest of free speech. This Court finds no legal authority or public policy argument which justifies so broad an incursion into First Amendment freedoms as to allow that which defendants attempt to advance here. Ferber does not open the door to allow the regulation contained in the Ordinance for the reason that adult women as a group do not, as a matter of public policy or applicable law, stand in need of the same type of protection which has long been afforded children. This is true even of women who are subject to the sort of inhuman treatment defendants have described and documented to the Court in support of this Ordinance. The Supreme Court’s finding in Ferber of the uncontroverted state interest in “safeguarding the physical .and psychological well being of a minor” and its resultant characterization of that interest as “compelling,” 102 S.Ct. 3348, 3354, is an interest which inheres to children and is not an interest which is readily transferrable to adult women as a class. Adult women generally have the capacity to protect themselves from participating in and being personally victimized by pornography, which makes the State’s interest in safeguarding the physical and psychological well-being of women by prohibiting “the sexually explicit subordination of women, graphically depicted, whether in pictures or in words” not so compelling as to sacrifice the guarantees of the First Amendment. In any case, whether a state interest is so compelling as to be a fundamental interest sufficient to warrant an exception from constitutional protections, therefore, surely must turn on something other than mere legislative dictate, which issue is discussed more fully further on in this Opinion. See Section “D,” infra. The second case relied upon by defendants to support their contention that Miller is not controlling in the present case is FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). According to defendants, Pacifica exemplifies the Supreme Court’s refusal to make obscenity the sole legal basis for regulating sexually explicit conduct. In Pacifica, the Supreme Court was faced with the question of whether a broadcast of patently offen