General Media Communications, Inc. v. Perry, No. 96 Civ. 7525 (SAS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtScheindlin
Citation952 F.Supp. 1072
PartiesGENERAL 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., and Video Software Dealer Association, Plaintiffs, v. William J. PERRY, in his official capacity as the Secretary of Defense, and the Department of Defense, Defendants.
Docket NumberNo. 96 Civ. 7525 (SAS).
Decision Date20 February 1997
952 F.Supp. 1072
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., and Video Software Dealer Association, Plaintiffs,
v.
William J. PERRY, in his official capacity as the Secretary of Defense, and the Department of Defense, Defendants.
No. 96 Civ. 7525 (SAS).
United States District Court, S.D. New York.
February 20, 1997.

Page 1073

Michael Bamberger, Helen Kim, Sonnenschein Nath & Rosenthal, New York City, for Plaintiffs.

Daniel Alter, Assistant U.S. Attorney, U.S. Attorney's Office, New York City, for U.S.

Jodie L. Kelley, Jenner & Block, Washington, DC, Amici Curiae.

AMENDED OPINION AND ORDER

SCHEINDLIN, District Judge:


Plaintiffs bring this action to obtain an Order from this Court declaring the Military Honor and Decency Act of 1996, 10 U.S.C. § 2489a (the "Act"), unconstitutional and enjoining defendants from enforcing its terms. For the reasons set forth below, I find the Act violates the First and Fifth Amendments. Accordingly, plaintiffs' request for injunctive relief is granted.

I. INTRODUCTION

Contrary to the arguments of the parties, this case is not about sex or core values. It is a case about pornography, and whether the Constitution protects plaintiffs' right to distribute it in military exchanges.1 Whether one likes or approves of pornography, however, is not the issue. In a diverse and

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democratic society, we tolerate a vast range of discourse, much of it in bad taste and offensive. Our historical decision to elevate the right of free speech above often valid and competing interests has, at times, come at a high price to our communal values and culture. Permitting hatemongers to march in Skokie or to burn crosses in St. Paul surely is not behavior of which the vast majority of Americans approves. Similarly, public flag burning, pornographic movies, or nude dancing are activities that do not reflect the dominant cultural values in American society. Yet these activities are among those that have enjoyed some measure of constitutional protection.2

The dilemma we face when the right to free speech conflicts with the equally compelling wish to silence those who demean others with sexist, racist, and otherwise outrageous speech is often a stark one. When balancing these two interests, however, the former must prevail. While the majority of Americans may wish to ban pornography, in the final analysis, 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. There is no question that the result of permitting such speech is often unfortunate and unpleasant. But our Constitution has effectively protected us for over two centuries from living in a society where the government intrudes on our individual rights by deciding what consenting adults can read or view. As Judge Learned Hand once eloquently expressed, the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943). In the context of our long and rich First Amendment tradition, it becomes clear that sexually explicit material cannot be banned from sale or rental at military exchanges merely because it is offensive.

II. FACTUAL AND PROCEDURAL BACKGROUND

Title 10 of the United States Code, Section 2489a, originally titled the "Military Honor and Decency Act of 1996," was added to the National Defense Authorization Act For Fiscal Year 1997 (Pub.L. 104-201) without debate on May 1, 1996. Signed by President Clinton on September 23, 1996, the Act became effective on December 22, 1996, and provides in pertinent part:

Sec. 2489a. ... (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), defendants issued implementing regulations that also became effective on December 22, 1996. See Declaration of Daniel S. Alter, Assistant U.S. Attorney, dated December 9, 1996 ("Alter Dec."), Ex. A. at 2.

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These regulations define "lascivious" to mean "[l]ewd and intended or designed to elicit a sexual response." Id.

The Act only bans the sale or rental of "sexually explicit" material on military property. It does not restrict the possession of such material on military property. Additionally, military personnel are free to buy "sexually explicit" material off military property or to order it through the mail. Military personnel may also share the same material with their colleagues so long as they do not sell or rent it.3

Plaintiff General Media Communications publishes various periodicals including Penthouse. The other plaintiffs are various trade associations whose members are engaged in the wholesale and retail distribution, sale and manufacture of periodicals, books, sound recordings and home videos throughout the nation. Plaintiffs allege that the Act infringes their rights to free speech and equal protection of the laws, in violation of the First and Fifth Amendments, respectively. In addition, they allege that the Act is unconstitutionally vague in violation of the Fifth Amendment.

Penthouse is the third most popular magazine sold by Army and Air Force Exchanges, with sales of approximately 19,000 copies per month.4 See Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction ("Plaintiffs' Memo") at 4. The January 1997 issue of Penthouse is 222 pages. The magazine contains a number of articles by prominent authors such as Ben Stein and Alan Dershowitz. More than 97 pages include pictures of women, many of whom are totally nude. A substantial number of these pictures reveal female genitalia and women engaged in sexual contact with other women. There can be no dispute that these depictions of women are designed to elicit a sexual response. It also is fair to say that many of these pictures offend commonly shared ideals of decency because of their explicit nature.5

On October 18, 1996, plaintiffs filed an Amended Complaint seeking injunctive and declaratory relief from the Act pursuant to 28 U.S.C. §§ 1331 and 2201. On December 20, 1996, this Court issued a Temporary Restraining Order enjoining defendants from enforcing the Act until decision of plaintiffs' motion. Oral argument was heard on December 31, 1996. On January 13, 1997, the parties agreed to treat plaintiffs' motion for a preliminary injunction as one for a permanent injunction.

III. DISCUSSION

A. Legal Standard for Granting Permanent Injunctive Relief

To succeed in an action for permanent injunctive relief, plaintiffs must establish (1) success on the merits of their claims; (2) irreparable harm absent injunctive relief; (3) that the threatened injury to plaintiffs outweighs any harm the injunction may cause to defendants; and (4) that the injunction is not adverse to the public interest. See E.E.O.C. v. Local 40, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers, 76 F.3d 76, 80 (2d Cir.1996) (citing Roberts v. Madigan, 702 F.Supp. 1505, 1514 (D.Colo.1989), aff'd, 921 F.2d 1047 (10th Cir.1990), cert. denied,

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505 U.S. 1218, 112 S.Ct. 3025, 120 L.Ed.2d 896 (1992)).

Provided that plaintiffs succeed on the merits of their claims, plaintiffs easily meet the remaining three elements of this test. The "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). See also Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996). Generally, "[w]hen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable harm is necessary." 11A Charles A. Wright, Arthur R. Miller and Mary Kane, Federal Practice and Procedure § 2948.1 at 161 (2d ed. 1995). The defendants cannot claim they will be harmed by an injunction if the Act is unconstitutional, or that the enforcement of an unconstitutional statute best serves the public interest. Thus, if plaintiffs succeed on the merits of their claims, they are entitled to permanent injunctive relief.

B. The First Amendment

It is well established that the government may restrict obscene speech and expressive conduct. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 112 S.Ct. 2538, 2543, 120 L.Ed.2d 305 (1992); Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973).6 The government concedes, however, that the terms of the Act extend beyond obscene material. See Transcript of Oral Argument ("Tr.") at 33. This case, therefore, presents the question of whether Congress may restrict the sale or rental of nonobscene speech in a military exchange on the ground that it is "lascivious", which is defined by the implementing regulations to mean "lewd and intended or...

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4 practice notes
  • General Media Communications, Inc. v. Cohen, No. 1853
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 21, 1997
    ...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 Heeding the Supreme Court's admonition that "judicial deference ... is at its apogee when legislative action under the congressional auth......
  • Rigdon v. Perry, Civil Action No. 96-02092.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 7, 1997
    ...of the military than the magazines, alcohol and tobacco sold by military exchanges. See General Media Communications, Inc. v. Perry, 952 F.Supp. 1072, 1080 (S.D.N.Y. 1997) (Scheindlin, J.) (rejecting as "unreasonable" the government's argument that the sale and rental of magazines in milita......
  • Pmg Intern. Div. L.L.C. v. Rumsfeld, No. 00-15652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2002
    ...action successfully obtained an injunction prohibiting the Act's implementation, see General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997), but the Second Circuit reversed, applying traditional First Amendment forum analysis to conclude that exchanges were nonpublic f......
  • Pmg Intern. Div., LLC v. Cohen, No. C-98-21138-JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 13, 1999
    ...the First and Fifth Amendments to the Constitution and entered a permanent injunction. See General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997). In a 2-1 decision, the Second Circuit reversed. See General Media Communications, Inc. v. Cohen, 131 F.3d 273 (2nd Cir.199......
4 cases
  • General Media Communications, Inc. v. Cohen, No. 1853
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 21, 1997
    ...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 Heeding the Supreme Court's admonition that "judicial deference ... is at its apogee when legislative action under the congressional auth......
  • Rigdon v. Perry, Civil Action No. 96-02092.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 7, 1997
    ...of the military than the magazines, alcohol and tobacco sold by military exchanges. See General Media Communications, Inc. v. Perry, 952 F.Supp. 1072, 1080 (S.D.N.Y. 1997) (Scheindlin, J.) (rejecting as "unreasonable" the government's argument that the sale and rental of magazines in milita......
  • Pmg Intern. Div. L.L.C. v. Rumsfeld, No. 00-15652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 2002
    ...action successfully obtained an injunction prohibiting the Act's implementation, see General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997), but the Second Circuit reversed, applying traditional First Amendment forum analysis to conclude that exchanges were nonpublic f......
  • Pmg Intern. Div., LLC v. Cohen, No. C-98-21138-JF.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 13, 1999
    ...the First and Fifth Amendments to the Constitution and entered a permanent injunction. See General Media Communications, Inc. v. Perry, 952 F.Supp. 1072 (S.D.N.Y.1997). In a 2-1 decision, the Second Circuit reversed. See General Media Communications, Inc. v. Cohen, 131 F.3d 273 (2nd Cir.199......

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