U.S. Supreme Court refuses to hear appeal of Penthouse publisher

Friday, June 26, 1998

The U.S. Supreme Court today refused to hear the appeal of Penthouse publisher Bob Guccione, who challenged the constitutionality of the Military Honor and Decency Act of 1996—a federal law banning the sale or rental of sexually explicit material at military bases.

The law 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 term “sexually explicit material” includes “an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.”

General Media Communications, Inc., the organization that publishes Penthouse, and other media groups challenged the law in federal court in October 1996, contending it violated First Amendment free-expression rights.

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

Federal district court Judge Shira Scheindlin agreed with the challengers in a January 1997 decision, 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.”

However, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit reversed Scheindlin's decision in November 1997 by a vote of 2-1.

The appeals court majority in General Media Comm. v. Cohen ruled the law was “a reasonable means of promoting the government's legitimate interest in protecting the military's image and its core values.”

Emphasizing that “military exchanges are not public streetcorners,” the 2nd Circuit wrote that “Congress has not banned sexually explicit magazines and videos—soldiers and sailors may still buy them elsewhere, receive them by mail, and read or watch them; Congress has decided only that the military itself will not be in the business of selling or renting those items to servicemembers.”

Judge Fred Parker issued a strong dissent. He wrote: “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 Supreme Court's denial of Penthouse's appeal means that the 2nd Circuit's decision stands and the law will soon be enforced.

Rep. Roscoe Barrett (R.-Md.), who sponsored the law, declared the Supreme Court's refusal to hear the case “a huge victory for the military and women.”

“I'm grateful, but not surprised the Supreme Court agreed that this law is constitutional, “Bartlett said. “It will go a long way to improving the military's ability to maintain order, discipline and unit cohesion, including respect for our women in uniform. This stuff is offensive and demeaning to women who volunteer to serve in the military and to military families. It's a shame we even needed a law so that the military could become a responsible employer. This decision means the smut will soon be pulled from the store shelves on base.”

David Greene, program director for the National Campaign for Freedom of Expression, said: “This law is part of a disturbing trend and continual effort by government to control the type of material people receive. In passing the Military Honor and Decency Act, Congress made the affirmative decision to suppress a type of written material that has a long history in the military. I am disappointed that the Supreme Court did not grant review, but I am not at all surprised.”

Marjorie Heins, a national free-speech expert with the ACLU, said: “You can't read too much into the Supreme Court's denial of certiorari. The Supreme Court cannot review every decision. This case must be seen in light of the extremely deferential standard afforded to the military. One hopes it will be confined to the military context.

“The 2nd Circuit decision was a bad one because the law is unreasonable and unrelated to any legitimate military goal. The military had little interest in this legislation; it was imposed for ideological reasons by a bunch of right-wing conservatives.”