The Minnesota House of Representatives recently killed a bill that would have prohibited government employees from staying at hotels that offer pornography on their in-room televisions when on official business. The Senate version of this bill, however, S.F. No. 2861, has made it out of committee and awaits a final vote.
The availability of porn in most hotel rooms seems like a given in this day and age. The intent of this bill is not necessarily to make Minnesota state employees stay at cut-rate roach motels, but seems intended to coerce larger, reputable hotels to make a value judgment and remove their adult content in order to receive state business. Because the bill only allows for employees to stay in these preferred hotels that don’t offer porn where they are available, its passage would create a race to the bottom; the first business to give up porn would win the bounty of revenues from state employees’ hotel stays.
But what is pornography? In this case, it is no rhetorical question, because the statute offers a specific definition in section 1:
“pornographic image or performance” means a sexually explicit image or performance that objectifies or exploits its subjects by eroticizing domination, degradation, or violence.
If this bill is enacted into law, it’s doubtful that it will withstand a constitutional challenge. This essential issue has been decided before, and in favor of free speech.
Deja Vú: American Booksellers Ass’n, Inc. v. Hudnut
The definition proposed by the Minnesota legislature is similar to one promulgated by a Indianapolis ordinance, and which the Seventh Circuit held unconstitutional in American Booksellers Association, Incorporated v. Hudnut. 771 F.2d 323 (7th Cir. 1985); aff’d mem. 475 U.S. 1001 (1986). The ordinance defined pornography as follows:
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 as being penetrated by objects or animals; or
(5) Women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or
(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.
Writing for the Circuit Court, Justice Easterbrook held that this definition was unconstitutional, and that “no construction or excision of particular terms could save it.” Id. at 332. The Seventh Circuit affirmed the district court’s ruling, which found the ordinance’s definition overbroad, a prior restraint on speech, and justifiable only by a compelling state interest in reducing sex discrimination, which Indianapolis failed to establish.
The court analogized pornography to the rhetoric of the Ku Klux Klan and Nazi Party. Irrespective of how degrading others may find pornography to women, those objections are not sufficient to make a ban on pornography like the one embodied in the Indianapolis ordinance constitutional. At the heart of the matter, the court found that the definition of pornography depended merely on the creator’s perspective; under the ordinance, speech that showed women in a subservient or submissive way would be prohibited irrespective of its literary merit, and expression that embodied gender parity would be lawful without consideration for how graphic and extreme it may be.
The fact that this ordinance was enacted to affect people’s thoughts, and namely to prevent men from seeing women treated subserviently and subsequently treat them as such, was considered by the court. It was that potential power of this speech, however, that indicated its value. What the videos at issue depicted – degradation and torture, in some cases – was not the same as the action itself. As the court stated, “the image of pain is not necessarily pain.” Id. at 330. Because the ordinance did not consider that such works may contain literary, scientific, political or artistic value, and instead preemptively considered them to be unlawful as if obscene and excepted from the First Amendment’s protections, the court found it to be unconstitutional.
Would Eight follow Seven?
Here, the Minnesota legislature employed a remarkably similar and rigid definition of pornography, essentially prohibiting hotels that host state employees from offering it, as if it were obscene. Embodied in the Senate bill’s prohibited eroticization of “domination, degradation, or violence,” are the same inflexible standards seen in the Indianapolis ordinance that had nothing to do with obscenity – the avenue most likely to deprive pornography of First Amendment protections – and was found unconstitutional by the Seventh Circuit. Under the Minnesota bill, works that depict sex without domination, degradation or violence will not be considered pornography and subject to restraint, however outrageous or meritless they are. This, like the Indiana ordinance before it, pays no heed to the artistic, literary or scientific merit that porn may have, and fails to grasp that a depiction of exploitation, degradation or violence is not in itself any of those things.
Beyond misconstruing pornography as obscenity, the bill uses poorly tailored means to effect its goals. If the legislature truly is concerned about objectification and exploitation of adult performers, prohibiting state employees – and only them – from using hotels that provide porn as an in-room service is an odd way of showing it. As previously stated, this legislation is an end-run around an overt intrusion on free speech, and serves as a coercive measure to make hotels stop offering porn on their own. To that end, it bears no relationship to actually curtailing the woes of exploitation or objectification as the bill claims it does — it merely limits the number of people who can see depictions of them. Indeed, the only thing this bill likely will stop is the comfortable lodging of state employees in well-known hotels when traveling on state business.
Thankfully, this definition of pornography is drawn poorly enough that it should not withstand a constitutional challenge. Combined with a badly aimed bill that affects only a small percentage of the state’s residents and doesn’t reach its stated concerns about exploitation, it has little chance of being constitutional. The test for obscenity already exists under Miller v. California, and it almost certainly will not be redrawn by a legislative enactment in Minnesota – especially when courts struck down virtually identical provisions in the past. Just as the state has no valid interest in enforcing such a law, the people of Minnesota shouldn’t have an interest in letting it pass. Even if families and individuals have no interest in viewing porn during their hotel stays, they have every right to do so. If this bill becomes law and is challenged, the courts seem bound to agree.
