General Media Communications, Inc. v. Cohen, No. 1853

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtJOSE A. CABRANES; PARKER
Citation131 F.3d 273
Decision Date21 November 1997
Docket NumberD,No. 1853
Parties26 Media L. Rep. 1033 GENERAL MEDIA COMMUNICATIONS, INC.; International Periodical Distributors Association; National Association of Recording Merchandisers; Periodical and Book Association of America, Inc.; Recording Industry Association of America, Inc.; Video Software Dealer Association, Plaintiffs-Appellees, v. William S. COHEN, in his official capacity as Secretary of Defense; Department of Defense, Defendants-Appellants. ocket 97-6029.

Page 273

131 F.3d 273
26 Media L. Rep. 1033
GENERAL MEDIA COMMUNICATIONS, INC.; International
Periodical Distributors Association; National Association
of Recording Merchandisers; Periodical and Book Association
of America, Inc.; Recording Industry Association of
America, Inc.; Video Software Dealer Association,
Plaintiffs-Appellees,
v.
William S. COHEN, in his official capacity as Secretary of
Defense; Department of Defense, Defendants-Appellants.
No. 1853, Docket 97-6029.
United States Court of Appeals,
Second Circuit.
Argued April 16, 1997.
Decided Nov. 21, 1997.

Page 275

Daniel S. Alter, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Marla Alhadeff, Steven M. Haber, Assistant United States Attorneys, on the brief), for Defendants-Appellants.

Michael A. Bamberger, Sonnenschein Nath & Rosenthal, New York City (Helen B. Kim, Frederick S. Young, Rachelle Barstow, Gregory Y. Porter, on the brief), for Plaintiffs-Appellees.

Melissa Wells-Petry, Washington, DC, for amicus curiae Family Research Council Military Readiness Project in support of Defendants-Appellants.

Jenner & Block, Washington, DC (Ann M. Kappler, Jodie L. Kelley, Gregory P. Magarian, Jenner & Block, Washington, DC; Burton Joseph, Barsy, Joseph & Lichtenstein, Chicago, IL; James Cregan, Magazine Publishers of America, Inc., Washington, DC, on the brief), for amici curiae Playboy Enterprises, Inc. and Magazine Publishers of America in support of Plaintiffs-Appellees.

Cathy Crosson, Bloomington, IN, for amicus curiae Feminists for Free Expression in support of Plaintiffs-Appellees.

Before: WINTER, Chief Judge, and CABRANES and PARKER, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

In this appeal, we address whether Congress exceeded its constitutional authority in banning the sale or rental of "sexually explicit materials" by military personnel acting in an official capacity, including the sale or rental of such materials by "military exchanges." 1 The United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge ) enjoined enforcement of the Military Honor and Decency Act of 1996, 10 U.S.C. § 2489a (the "Act"), after concluding that it violates the Free Speech Clause of the First Amendment 2 and the Due Process Clause of the Fifth Amendment. 3 General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997).

Heeding the Supreme Court's admonition that "judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged," Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981), we hold that Congress acted well within its constitutional authority to regulate official military conduct.

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 these items to servicemembers. The appellees, who include publishers and producers of sexually explicit materials, argue that their

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free speech rights will be abridged if the military stops selling and renting their products. But military exchanges are not public streetcorners; they are not available for everyone to "speak" from their shelves. These stores are nonpublic forums in which the government may restrict the content of speech, so long as the restriction is reasonable and it does not discriminate among particular viewpoints. Congress has regulated the military's purchase and resale of materials constituting a particular subject matter--lascivious depictions of nudity including sexual or excretory activities or organs--not those reflecting particular viewpoints. This policy avoids the appearance that the military, by selling sexually explicit materials in military exchanges, endorses these materials. As such, the policy is a reasonable way for Congress to uphold the military's image and core values of honor, professionalism, and discipline. Because the Act reasonably furthers legitimate governmental interests in a nonpublic forum without engaging in viewpoint discrimination, it does not violate the Free Speech Clause of the First Amendment.

The Act also does not violate the Fifth Amendment. Congress has considerable leeway in drawing distinctions as it decides how to implement particular policies. Insofar as the Act does not violate the First Amendment, its definitions and distinctions need only be rationally related to legitimate governmental interests. It passes that test, and so does not violate the equal protection guarantee of the Fifth Amendment. The Act's terms and meaning are also sufficiently clear to give the appellees notice of what will no longer be sold in military exchanges, and so the Act is not unconstitutionally vague.

The Constitution does not, of course, stop at the gates of a military base. But within those gates, "the rights of [persons] in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty." Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974) (internal quotation marks and citations omitted). Congress, acting under its authority to maintain and regulate the armed forces, may constitutionally place some restrictions on the speech that occurs under military command. The Military Honor and Decency Act of 1996 embodies such a set of constitutional restrictions. Accordingly, we vacate the judgment of the district court and remand with instructions to enter judgment for the appellants.

I.

The Military Honor and Decency Act became effective on December 22, 1996, and provides in pertinent part:

(a) PROHIBITION OF SALE OR RENTAL. 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.

(b) PROHIBITION OF OFFICIALLY PROVIDED SEXUALLY EXPLICIT MATERIAL. 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 sexually explicit material to another person.

(c) REGULATIONS. The Secretary of Defense shall prescribe regulations to implement this section.

(d) DEFINITIONS. In this section:

(1) the term "sexually explicit material" means 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.

10 U.S.C. § 2489a. Pursuant to section 2489a(c), the Department of Defense issued a "directive-type memorandum" 4 implementing the Act that also became effective on December 22, 1996. This memorandum contains the following pertinent definitions:

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1. Material. An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium.

2. Sexually Explicit Material. Material the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way.

3. Dominant Theme. A theme of any material that is superior in power, influence, and importance to all other themes in the material combined.

4. Lascivious. Lewd and intended or designed to elicit a sexual response.

Joint App. at 63, reproducing DoD Directive-Type Memorandum, "Sale or Rental of Sexually Explicit Material on DoD Property" (Dec. 22, 1996). The memorandum also provides that "[m]aterial shall not be deemed sexually explicit because of any message or point of view expressed therein."

In addition, the memorandum establishes the "Resale Activities Board of Review" (the "Board"). The Board is obliged periodically to review material offered for sale or rental on military property to determine whether such material is sexually explicit. Any material that the Board finds to be "sexually explicit" according to the stated terms of the memorandum is to be withdrawn from military retail outlets.

The district court found, and the parties do not dispute, that the Act bans only the sale or rental of sexually explicit material on military property. The Act does not restrict the possession of such material on military property, nor does it prohibit military personnel from sharing such material with their colleagues, so long as they do not sell or rent it. Additionally, military personnel may buy sexually explicit material off military property or order it through the mail. See General Media, 952 F.Supp. at 1075.

Appellee General Media Communications, Inc. ("GMC") publishes various periodicals, including Penthouse. The other appellees are various trade associations representing businesses engaged in the production, wholesale and retail distribution, and sale of periodicals, books, sound recordings, and home videos throughout the country.

Appellees brought suit in the district court in October 1996 seeking an injunction barring the enforcement of the Act and a declaratory judgment that the Act is unconstitutional. Appellees alleged, inter alia, that the Act infringes their rights to free speech and equal protection of the laws, in violation of the First and Fifth Amendments, and that the act is unconstitutionally vague, in violation of the Fifth Amendment. See General Media, 952 F.Supp. at 1075. On December 20, 1996, two days before the Act was to go into effect, the district court issued a temporary restraining order enjoining appellants from enforcing the Act until the court had decided appellees' motion for a preliminary injunction. Following parties' submissions of affidavits and declarations, the district court heard oral argument on December 31, 1996, and on January 13, 1997, the...

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