Ban on sexually explicit magazines on military bases struck down

NEW YORK–A federal District Court in Manhattan ruled in late January that a new federal law banning the sale of sexually explicit magazines on United States military bases is unconstitutional.

Judge Shira Scheindlin found that the act prohibiting the sale or rental of “patently offensive” or “lascivious” material is an attempt to restrict non-obscene speech. Because the act’s classifications do not further a permissible, let alone compelling, state interest, and because the means the government has chosen to further that interest are not narrowly tailored, the act violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Scheindlin added that the vagueness of the terms “patently offensive” and “lewd,” which the statute offers as a partial definition of lascivious, infringe upon Fifth Amendment due process rights by allowing for arbitrary interpretation and application of the law.

The Military Honor and Decency Act, which would have banned the sale of sexually explicit magazines and videos whose content contains lascivious portrayals of nudity, was to have taken effect in mid- December. According to the law, “lascivious” is defined as “lewd and intended or designed to elicit a sexual response.” The act does not restrict the possession sexually explicit material by military personnel, it only bans the sale or rental of such material on military property.

Penthouse publisher General Media Communications, along with other media distributors, challenged the law as unconstitutional censorship. Judge Scheindlin issued a temporary restraining order in late December to prevent enforcement of the law while she considered the publishers’ challenge.

Those opposing the ban had warned that the act’s loose wording could extend that ban to the Internet, cable television, sex manuals for married couples and the Sports Illustrated swimsuit issue, AP reported. Proponents of the ban insisted that it was limited to the sale of sexually explicit magazines and videos.

In her ruling, Scheindlin stated that society is better served by protecting the right to free speech, even at the cost of tolerating speech that is outrageous, offensive and demeaning.

According to the Associated Press, the Pentagon and Justice Department have not yet decided whether to appeal the judge’s order.

Penthouse is the third-most-popular magazine sold on Army and Air Force bases, with more than 19,000 sales each month. (General Media Communications v. Perry; Media Counsel: Michael Bamberger)