Issues@Hand
AFA initiatives, Christian activism, news briefs
March 1997 – In a stunning decision Judge Shira Scheindlin ruled in U.S. District Court that the Military Honor and Decency Act is unconstitutional, in effect forcing the Pentagon to continue selling pornographic magazines such as Penthouse, Playboy, and Hustler.
The Military Honor and Decency Act ended the taxpayer-subsidized sale or rental of sexually explicit material at Department of Defense facilities. It was included in the National Security Authorization Act of 1996, passed by the 104th Congress and signed into law by President Clinton.
But Penthouse publisher, General Media Communications, challenged the law, arguing that the ban unconstitutionally restricted the publisher’s right to free speech and expression. Penthouse attorney Michael Bamberger said in court that while the magazine is sexually explicit, it is not “obscene.” Bamberger said the magazine offered “a positive viewpoint that human sexuality is beneficial, is good, is enjoyable, is not a bad thing or a thing to be ashamed of.” He added that the Military Honor and Decency Act had the effect of banning “material which depicts sex as fun.”
In her decision, Judge Scheindlin agreed, stating that the law unfairly singled out and then proscribed “lewd” and “patently offensive” materials, which was insufficient grounds for removing First Amendment protection. She said Congress basically had only two options: it could impose a blanket ban on all magazines, books and tapes sold at military bases, or it could ban only “obscene” material, which is not protected by the First Amendment.
Penthouse publisher Bob Guccione immediately lauded the decision, saying it “has given the First Amendment a new spit-shine. The fact that others might find the magazines offensive is not a rationale for barring them.”
AFA Law Center Chief Counsel Bruce Green said the decision “reflects the deep and abiding confusion currently existing in the federal judiciary over the First Amendment,” and renders society powerless to do anything about material that even the court said was indecent and offensive.
One congressman did not deny the validity of the free speech issue raised by Penthouse, just its application in this case. GOP Rep. John McHugh of New York, chairman of the morale, welfare and recreation panel that oversees military resale activities, said, “Just because you have the right to read it doesn’t mean we have to sell it to you.”
But Green said the court had erred in automatically assuming that pornography was entitled to the same protections as pure speech. “That’s wholly unsupported in any kind of principled legal analysis, and yet the words ‘free speech’ are thrown around throughout the opinion,” he said. “There is no question that previous court rulings, even in the United States Supreme Court, have determined that certain types of pornographic or erotic expression are not entitled to the same protection that is given pure speech.” Green added that the court ignored these previous rulings in its opinion.
Republican Congressman Roscoe Bartlett of Maryland, who authored the Military Honor and Decency Act, said, “I am, of course, deeply disappointed by a judge’s ruling that the government must continue to subsidize the sale of smut at military bases ... I find it inexplicable. How can this be explained to the American people?”
Bartlett further complained that, in light of recent military scandals regarding sexual harassment, allowing pornography to be sold on military bases was irreconcilable with the government’s attempts to prevent further scandals.
“Our government and military cannot maintain a professional command climate that includes respect for our women serving in the enlisted ranks and as officers while simultaneously promoting the distribution of this kind of material,” Bartlett said. “This garbage clearly demeans women.”
The judge’s opinion recognized the validity of the military’s attempt to root out sexual harassment, but then said it must do so in a manner that is constitutionally permitted.
Also upset with the decision is Robert Maginnis, director of the Military Readiness Project of the Family Research Council. A retired U.S. Army colonel who investigated sexual misconduct cases when he served as Pentagon inspector general, Maginnis said there was an issue even beyond the military’s need to prevent sexual harassment. “Congress’ constitutional obligation is to protect the military’s combat fitness,” he said. “Congress has declared that selling pornography is bad for readiness, and the military should obey.”
Green said that the courts have recognized this specialized role that the military plays in American life, and have often excluded the military from many of the obligations placed on the rest of the government, even in the area of freedoms granted by the Bill of Rights.
“The opinion fails to show this historical and constitutional deference given the military in light of the need to preserve and promote military discipline and fighting capability,” Green said.
A spokesman for the Justice Department said government lawyers were reviewing the judge’s ruling to determine whether to appeal. Ordinarily, however, the department feels obliged to continue defending federal laws that have been challenged on constitutional grounds.
Christian Policy Research Institute Report, 1/2/97; Baltimore Sun, 1/23/97;
Associated Press, 1/23/97; Washington Times, 12/29/96
