Military Honor and Decency Act challenged in federal court — again

Wednesday, November 25, 1998

The Military Honor and Decency Act, the federal law that restricts sale or rental of sexually explicit material at military bases, has been challenged in federal court on First Amendment grounds — again.

Last week, three companies that sell magazines at wholesale prices for resale at military exchanges and four individuals, active or retired military personnel, sued in a California federal district court, contending the law violates First Amendment free-speech rights.

The Military Honor and Decency Act provides that “the Department of Defense may not permit the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense.” Another provision of the law provides that “a member of the Armed Forces or a civilian officer or employee of the Department of Defense acting in an official capacity may not provide for sale, remuneration or rental of sexually explicit material to another person.”

In PMG International Division, L.L.C. v. Cohen, the plaintiffs allege that the act violates the First Amendment in several ways, including:

  • Unconstitutionally discriminating against material based on content.
  • Unconstitutionally discriminating against material based on viewpoint.
  • Restricting more speech than necessary to serve the law's stated goals.
  • Imposing an “unconstitutional prior restraint on distribution of material that is protected by the First Amendment.”
  • Failing to contain “adequate procedural safeguards” to guard against “undue inhibition of protected expression.”

The government asserts the law is necessary to protect “the military's image of honor, professionalism and proper decorum.”

This latest lawsuit marks the second time that the 1996 law has been challenged on First Amendment grounds.

In November 1997, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit
rejected, by a vote of 2-1, the First Amendment challenge of Penthouse publisher Bob Guccione. In General Media Comm. v. Cohen, the appeals court ruled 2-1 that the law was constitutional, writing that the law was a “reasonable means of promoting the government's legitimate interest in protecting the military's image and its core values.”

The appeals court reversed an earlier January 1997 decision by Federal District Court Judge Shira Scheindlin who ruled the law unconstitutional, writing: “Society is better served by protecting our cherished right to free speech, even at the cost of tolerating speech that is outrageous, offensive and demeaning.”

Last June, the U.S. Supreme Court refused to hear Guccione's appeal of the 2nd Circuit majority decision.

That precedent does not dissuade attorneys for the challengers, however. Peter Smalbach, one of the lead attorneys, said: “We think the 2nd Circuit's decision was wrong and, therefore, we are taking another shot at the law facially.”

In First Amendment law, litigants may make two different types of challenges to laws: facial challenges, i.e., challenges to the law on its face, and as-applied challenges — challenges not to the explicit language of a law but to how it is being applied.

“We believe that we can successfully bring an as-applied challenge to this law in addition to a facial challenge,” Smalbach says. “We are taking quite a different look at this statute.”

Smalbach says that the act empowers a Resale Activities and Review Board to determine which publications are to be banned at military exchanges. The plaintiffs refer to this body as the “Censorship Board” in their lawsuit.

The lawsuit alleges that the activities of the “Censorship Board” violate the First Amendment in several ways, noting that:

  • “The proceedings of the Censorship Board are secret.”
  • “The standard applied by the Censorship Board, if there is one, has not been articulated.”
  • “The burden of instituting judicial proceedings is on the plaintiffs, and no alternative proceedings are provided.”
  • “The prior restraint of protected expression and material is not for a specified period of time.”
  • “There are no procedures available for a judicial determination or a viable alternative thereto.”

“The Censorship Board is acting in an unfair way by deciding what is and is not going to be made available to military personnel at military exchanges,” Smalbach said. “There is no judicial review of what this board does.”

A call placed to the Department of Justice was not returned prior to publication.