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Policy Brief Exercise

The Pornography Ordinance:  What’s a Mayor to Do?

Frustrated by an increasing number of adult entertainment businesses and the rise of prostitution in lower-income sections of a large mid-western city, religious leaders, business groups, and community activists decided to fight back. These groups maintained that the increased visibility of pornography in the city was a threat to women and caused neighborhood devaluation and decay.  They decided to enlist the help of a legal clinic at a local public university to help them address this public policy problem.  Two feminists’ lawyers working for the clinic proposed a controversial piece of legislation that defined pornography as sex discrimination and as such violation of a woman's civil rights. More specifically, the ordinance defined pornography as “a form of discrimination on the basis of sex.”  The ordinance went further by adding a controversial section on trafficking. This provision of the ordinance stated that the production, sale, or distribution of pornography is discrimination against women by means of trafficking.   Essentially, this meant that any woman could file a complaint to the City’s Civil Rights Commission against someone who produced, sold, or distributed pornography.  In effect, a woman could sue a business owner who engaged in pornography for monetary damages, or she could obtain an injunction to prevent the pornographer from selling any more of the material.

This rather broad definition of pornography and the provision stating the production, sale, distribution was a form of trafficking led the American Civil Liberties Union to contend the proposed ordinance impinged upon the constitutional right of freedom of speech.  Despite the concerns raised about the constitutionality of the ordinance by the ACLU, business associations, religious organizations, community activists strongly supported the ordinance. It was passed unanimously by the city council.

When the proposed legislation arrived at his desk, the mayor, George Rawson, had three options he could take. He could veto it, sign it, or ignore it and allow proposed ordinance to become law without his signature.  Rawson, a lawyer, was concerned about the constitutionality of the proposed ordinance.  In 1973, the U.S. Supreme Court defined obscenity within the context of pornography in the landmark case of Miller v. California, 413 U.S. 15 (1973).  The Miller decision established three criteria for considering pornographic material obscene and unconstitutional.  The material had to lack any serious artistic or social value, it had to portray sexual conduct in a blatantly offensive way, and it had to be considered obscene using contemporary community standards.  In effect, the Court’s holding in Miller created burdensome procedures for taking civil or criminal action against pornographers so as to avoid excessive censorship. The implementation strategy that cities commonly used to limit pornography sales was through zoning laws. However, zoning regulations were often struck down by the courts for being unconstitutional because they violated freedom of expression.  In addition, Mayor Rawson was concerned about the likely administrative costs that would be imposed on the city’s Civil Rights Commission by the proposed ordinance.  The city’s Civil Rights Commission was to be the agency responsible under the proposed legislation for hearing any complaint related to pornography. 

Both proponents and opponents of the proposed pornography ordinance tried to persuade the mayor to support their position.   However, the mayor has chosen to without any decision regarding the recommendations by both the proponents and the opponents of the proposed legislation.  Instead, he turns to a member of his staff and asks you to frame the problem and provide him the information and advice he needs to make a decision.    

The mayor wants this information in a short policy brief.  This brief should provide him with key information (findings, analysis, and/or recommendations) regarding this complex public policy issue.  The policy brief will also serve as the basis for any public statements that Mayor Rawson may make about the proposed ordinance.   The policy brief must convey information succinctly and cogently.  See the section below detailing the steps involved in drafting a policy brief.  Put the policy brief in the form of a memorandum and direct it toward Mayor Rawson.  The policy brief should be between 4-5 pages.