Ban on sale of explicit materials on military bases upheld

NEW YORK–A 1996 law that banned the sale of sexually explicit materials on military bases is a reasonable way of protecting “the military’s image and core values,” a federal appeals court in New York City ruled in late November.

A three-judge panel decided 2-1 that the Department of Defense could enforce the Military Honor and Decency Act, which barred pornographic magazines and videotapes from being sold or rented on military bases.

In the majority opinion, Judge Jose Cabranes wrote that the law does not violate the First Amendment. “Military exchanges are not public street corners. … These stores are nonpublic forums in which the government may restrict the content of speech, so long as the restriction is reasonable and it does not discriminate among particular viewpoints.” Cabranes added that the law was a reasonable means for Congress to uphold the military’s “values of honor, professionalism and discipline.”

The court also held that the law is “rationally related to legitimate governmental interests,” and thus does not violate the Due Process Clause of the Fifth Amendment.

The law was challenged in October 1996 in a federal District Court in New York by General Media International — publisher of Penthouse magazine — and several other publishing companies. The publishers charged that the legislation violated their constitutional rights. District Judge Shira Scheindlin ruled in favor of the publishers, writing that the law’s definition of sexually explicit material was dangerously vague. She said enabling military officials to “classify materials as sexually explicit impermissibly chills plaintiffs’ First Amendment rights.”

Scheindlin’s decision prevented the military from implementing changes under the law, but the latest ruling clears the way for enforcement.

Michael Bamberger, an attorney for the publishers, told The New York Times that the decision was “truly misguided” and that it “fails to accept and accommodate the First Amendment rights of military personnel.” Bamberger said his clients are considering an appeal, The Times reported. (General Media Communications, Inc. v. Cohen; Media Counsel: Michael Bamberger, New York)