Pmg Intern. Div. L.L.C. v. Rumsfeld

• Citation: 303 F.3d 1163
• Decision Date: 13 September 2002
• Docket Number: No. 00-15652.,00-15652.
• Parties: PMG INTERNATIONAL DIVISION, L.L.C., Plaintiff-Appellant, v. Donald H. RUMSFELD,<SMALL><SUP>*</SUP></SMALL> in his official capacity as the Secretary of Defense; Department of Defense, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

303 F.3d 1163

PMG INTERNATIONAL DIVISION, L.L.C., Plaintiff-Appellant, v. Donald H. RUMSFELD,^* in his official capacity as the Secretary of Defense; Department of Defense, Defendants-Appellees.

No. 00-15652.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2002.

Filed September 13, 2002.

COPYRIGHT MATERIAL OMITTED

Gerald H. Goldstein (argued) and Cynthia Hujar Orr, Goldstein, Goldstein & Hilley, San Antonio, TX, for the Plaintiff-Appellant.

David O. Buchholz, United States Department of Justice, Civil Division, Washington, DC, for the Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CV-98-21138-JF(PVT).

Before D.W. NELSON and HAWKINS, Circuit Judges, and FITZGERALD,^** Senior District Judge.

OPINION

MICHAEL DALY HAWKINS, Circuit Judge.

Three magazine distributors and three individuals with military affiliations (collectively "PMG") filed suit against the Secretary of Defense and the Department of Defense (collectively "Defendants") to enjoin the enforcement of the Military Honor and Decency Act (the "Act"), which prohibits the sale or rental of sexually explicit material on Department of Defense property. PMG raised First and Fifth Amendment claims, arguing that the Act is unconstitutionally vague, restricts protected speech and, as enforced, has a disparate impact on minorities and women. We must decide whether the Act's ban on sexually explicit materials is government speech. Because we believe it is not, we must decide whether to agree with the Second Circuit, which, in considering claims virtually identical to those raised here, applied First Amendment forum analysis to conclude that military exchanges are nonpublic fora and that the Act is a viewpoint-neutral, reasonable regulation of speech.

BACKGROUND

The Act became effective in December of 1996 and provides in relevant 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.

The Department of Defense ("DOD") has implemented the Act through DOD Instruction 4105.70 and DOD Directive 1330.9. Instruction 4105.70 defines terms in the Act as follows:

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

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

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

3.4. Property Under the Jurisdiction of the Department of Defense. Commissaries operated by the Defense Commissary Agency and facilities operated by the Army and Air Force Exchange Service, the Navy Exchange Service Command, the Marine Corps Exchanges, and U.S. Navy ships' stores ...

The Instruction also establishes the "Resale Activities Board of Review" (the "Board"). The Board must periodically review materials sold or rented on military property, and any such material it deems sexually explicit is withdrawn from military retail outlets. The Board initiated reviews in 1998 and has issued numerous lists categorizing publications as sexually explicit or not sexually explicit.

The Act primarily affects military exchanges, which exist "for the comfort, pleasure, contentment, and mental and physical improvement of the armed forces," 5 U.S.C. § 2105(c), and to provide "a supplemental funding source for DOD [moral, welfare and recreation] programs." DOD Directive 1330.9 § 3.1. Exchanges provide a broad array of materials for sale or rent, including books, periodicals, and video and audio tapes. Exchanges are open only to members of the military and to those explicitly authorized under DOD Directive 1330.9 § E2.2.

In December 1996, counsel for appellants in the present 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 fora, and that the Act was a reasonable, viewpoint-neutral regulation of speech. See General Media Communications v. Cohen, 131 F.3d 273, 277 (2d Cir.1997) ("General Media"). PMG filed the immediate complaint alleging virtually the same First Amendment claims decided in General Media, namely that the Act: infringes on appellants' First Amendment right to sell, purchase, rent or otherwise distribute and receive sexually explicit material; discriminates on the basis of viewpoint; is unconstitutionally vague; and acts as a prior restraint on protected speech. In the current action, PMG has added a Fifth Amendment disparate impact claim, arguing that almost all adult materials specifically "marketed and addressed" to minorities and women have been deemed sexually explicit. Also distinguishing the present action from General Media is the addition of individual plaintiffs wishing to purchase sexually explicit materials from military exchanges. The district court denied appellants' motion for a preliminary injunction and also dismissed appellants' equal protection claim.¹

ANALYSIS

I. Forbes and Government Speech.

We review the factual findings underlying the court's denial of the preliminary injunction for clear error, and its conclusions of law de novo. See South Coast Servs. Corp. v. Santa Ana Valley Irrigation Co., 669 F.2d 1265, 1269 (1982). The court dismissed PMG's First Amendment claims on the basis of Arkansas Educational Television Commission v. Forbes ("Forbes"), 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), which held that the government "speaks" in exercising editorial discretion, or through the "compilation of the speech of third parties." Id. at 674, 118 S.Ct. 1633. The district court concluded that the Act merely regulated government speech, and that PMG had no right under the First Amendment to compel the government to offer sexually explicit materials at military exchanges. See PMG Inter. Div. v. Cohen, 57 F.Supp.2d 916, 919 (N.D.Cal.1999) ("While plaintiffs clearly have a right to engage or listen to nonobscene speech, they have no constitutional right to compel the government to facilitate or participate in the making or communication of that speech.").

We first consider whether the district court correctly relied on Forbes to conclude that restrictions of speech on military exchanges are not subject to traditional First Amendment forum analysis. Forbes concerned an independent congressional candidate who claimed that his exclusion from a debate sponsored by a state-owned public television broadcaster violated the First Amendment. The Supreme Court reasoned that in the case of television broadcasting, "broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise" in fulfilling their statutory duty to serve the "public interest, convenience and necessity." Id. at 673, 118 S.Ct. 1633. The court analogized the public broadcaster's programming decisions to a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school designing a curriculum. Id. The court declined to apply forum analysis so as to avoid "regiment[ing] broadcasters" absent congressional commands to do so, concluding that the editorial decisions of a public broadcaster constitute government speech.² Id. at 674, 118 S.Ct. 1633 (citations omitted).

Forbes and Government Speech Acts.

The logic of Forbes has not been applied widely. Only one circuit case, also arising in the public broadcasting arena, has directly relied on Forbes in distinguishing government from private communications in the free speech context.³ In Knights of the Ku Klux Klan v. Curators of the University of Missouri ("Knights"), 203 F.3d 1085, 1090 (8th Cir.2000), the Eighth Circuit relied on Forbes to hold forum analysis inapplicable to a public radio station's editorial decision to refuse an underwriting offer by the Ku Klux Klan. In concluding that underwriting announcements were government speech, the court analogized the editorial decisions of a public radio station broadcaster to that of a public television broadcaster, observing that the acknowledgments were federally-mandated sponsorship identifications, and were composed, edited, reviewed and read by station staff. Id. at 1093-94.

We find the facts at issue here distinguishable, and cannot say that the properties covered by the Act should be exempt from public forum analysis. First, as the district court concludes, Forbes "identified certain policy considerations specifically associated with public broadcasting which are not present here." PMG, 57 F.Supp.2d at 918. Public broadcasting entities on radio and television are required to air programming that serves "public interest, convenience, and necessity," 47 U.S.C. § 309(a); Knights, 203 F.3d at 1091, and "Congress' decision to license broadcasters in such a manner indicated its preference that ...