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July 13, 1999


The opinion of the court was delivered by: Fogel, District Judge.

                          ORDER DENYING MOTION FOR
                           PRELIMINARY INJUNCTION

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.


A. Constitutionality

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.

131 F.3d at 275.

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 all.

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