The opinion of the court was delivered by: Fogel, District Judge.
ORDER DENYING MOTION FOR
Plaintiffs seek a preliminary injunction which would bar defendants
from enforcing 10 U.S.C. § 2489a, a statute also known as "The
Military Honor and Decency Act." For the reasons set forth herein,
plaintiffs' motion will be denied.
The subject legislation (hereinafter, "the Act") was enacted by
Congress in 1996. Subsection (a) of the Act provides that "[t]he
Secretary of Defense may not permit the sale or rental of sexually
explicit material on property under the jurisdiction of the Department of
Defense." Subsection (b) provides that "[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." Subsection (c) directs the
Secretary of Defense to develop regulations to implement the Act.
Finally, subsection (d) defines the terms "sexually explicit material"
and "property under the jurisdiction of the Department of Defense."
Before the Act took effect, the publisher of Penthouse magazine and
other periodicals, as well as several trade associations representing
businesses engaged in the production, distribution, and sale of
periodicals, books, sound recordings and videos, sought to enjoin its
enforcement. The United States District Court for the Southern District
of New York concluded that the Act violates 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. 1997) ("GMC"). The
Act is now in effect.
The entity plaintiffs in the present action are magazine wholesalers
which previously supplied certain now-banned magazines to military
exchanges. The individual plaintiffs are military personnel, dependents,
and civilian employees of the military who assert a right to purchase
now-banned materials at military exchanges*fn1. Plaintiffs are
represented by the same counsel who represented the plaintiffs in GMC.
Plaintiffs challenge the constitutionality of the Act on the same grounds
as were raised in GMC with additional arguments relating to the way the
Act is being implemented and to the fact that plaintiffs now include not
only publishers and distributors but also individuals who wish to receive
the communications in question.
It is important at the outset to emphasize what is not at issue in the
present case. The fundamental question before the Court is not whether
members of the armed services have a constitutional right to read or
watch sexually explicit materials. As was noted by the Second Circuit
majority in GMC:
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.
Both the majority and the dissenting opinions in GMC analyzed the
facial constitutionality of the Act in light of traditional free speech
doctrine, according to which the degree to which First Amendment
protections are implicated by restrictions on speech depends upon the type
of forum in which the speech occurs and whether the restrictions are
based upon the content or the viewpoint of the speech. The language
quoted above, however, highlights what this Court believes to be the
critical issue in the case before it: do plaintiffs' First Amendment
rights include the right to have the government disseminate particular
types of speech? While most often the governmental regulation at issue in
a free speech case is aimed at restricting the right of citizens to
publish or distribute certain materials, in this case the government has
restricted itself from engaging in such activity.
Defendants rely heavily upon Arkansas Educational Television Commission
v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998), a case
decided after GMC. In Forbes, an independent political candidate was
excluded from a debate sponsored and televised by a public television
station. In analyzing whether the exclusion violated the candidate's
constitutional rights, the Supreme Court first considered "whether public
forum principles apply to the case at all." Id. at 1639. The Court
concluded that as a general rule public broadcasting "does not lend
itself to scrutiny under the forum doctrine." Id. at 1640. Although in
reaching this conclusion the Court identified certain policy
considerations specifically associated with public broadcasting which are
not present here,*fn2 Forbes nonetheless plainly stands for the
proposition that some channels of communication simply are not fora at