Penthouse publisher fights for on-base sales of sex magazines, tapes

Friday, April 3, 1998

Penthouse publisher Bob Guccione recently took his challenge of a federal law that restricts the sale or rental of sexually explicit videos or magazines on military bases to the U.S. Supreme Court.

The law, called the Military Honor and Decency Act, provides that “the Secretary of Defense may not permit the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense.” The government asserts the law is necessary to protect “the military's image of honor, professionalism and proper decorum.”

Guccione's appeal comes in the wake of an unfavorable decision in General Media Comm. v. Cohen last November by the 2nd Circuit Court of Appeals. The appeals court upheld the law by a 2-1 vote in part because of “the special circumstances of the military environment, in which the appearance of professionalism and proper conduct is critical.”

The 2nd Circuit determined that a military base is not a public forum, in which even regulations of expression based on content are considered constitutional as long as they are reasonable and do not discriminate based on viewpoint. The appeals court concluded that the law “is a 'reasonable' means of promoting the government's legitimate interest in protecting the military's image and its core values.”

Judge Fred Parker issued a strong dissent, stating: “When First Amendment protection bows to the military's desire to suppress certain ideas without a clear and strong reason, desire to protect our liberties with a strong military authority may end up eroding our liberty to speak freely and to be tolerated in doing so.”

The 2nd Circuit's opinion reversed the ruling of federal district court Judge Shira Scheindlin, who ruled the law unconstitutional in January 1997.

First Amendment attorney John T. Mitchell, who practices in Washington D.C., said: “The key error made by the 2nd Circuit was when it said that there was no viewpoint discrimination because we are only dealing with sexually explicit material. There is a viewpoint implicit in sexually explicit materials.

“There was a clear viewpoint on the part of the military that sexually explicit materials are bad. The very motive of the lawmakers who drafted this law was that the material is smut,” he said.

Mitchell also disagreed with the 2nd Circuit's reliance on the special circumstances of the military environment to lower the level of First Amendment review. “This argument that the military has greater leeway to restrict materials is a sham, because the military doesn't prohibited enlisted people from buying the material off-base and reading the material on-base.”