Constitutional Law
Sep. 27, 2002
See No Evil
Forum Column - By Erwin Chemerinsky - On Sept. 13, the 9th U.S. Circuit Court of Appeals upheld a federal law that prohibits the sale of sexually explicit material at military bases. PMG International Division L.L.C. v. Rumsfeld , 2002 DJDAR 10619 (9th Cir. Sept. 13, 2002). Under this statute, the government has prohibited the sale of magazines such as Penthouse and Playgirl, although it has allowed the sale of publications such as Playboy and Playgirls Centerfolds.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
On Sept. 13, the 9th U.S. Circuit Court of Appeals upheld a federal law that prohibits the sale of sexually explicit material at military bases. PMG International Division L.L.C. v. Rumsfeld, 2002 DJDAR 10619 (9th Cir. Sept. 13, 2002). Under this statute, the government has prohibited the sale of magazines such as Penthouse and Playgirl, although it has allowed the sale of publications such as Playboy and Playgirls Centerfolds.
The law forces the government to do exactly what the First Amendment forbids: make content-based distinctions among speech. Moreover, the 9th Circuit's express deference to the military continues an undesirable trend of judicial deference to the military even when the matter has no relationship whatsoever to military operations.
The case concerned the constitutionality of the federal Military Honor and Decency Act, 10 U.S.C. Section 2489a, which prohibits the sale or rental of sexually explicit material on Department of Defense property.
"Sexually explicit material" is defined as "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," the decency act states.
Department of Defense regulations define prohibited material as that in which the sexual theme is "dominant" or "[l]ewd and intended or designed to elicit a sexual response." Pursuant to this statute and these regulations, the military decides which magazines can be sold and which videotapes rented.
As mentioned above, it has excluded magazines such as Penthouse, Hustler and Playgirl. These, of course, are publications that can be purchased in virtually any airport or on any newsstand in the country. The military, though, has allowed sale of Playboy, Players Calendar Series and Playgirls Centerfolds.
I guess the military believes that people buy Playboy primarily to read the articles but Penthouse and Playgirl to look at the pictures. Any distinction among these publications seems highly subjective and exactly of the sort that the First Amendment prohibits the government from making.
The Supreme Court decision in United States v. Playboy Entertainment Group Inc., 120 S.Ct. 1878 (2000), seems on point and, interestingly, never was mentioned by the 9th Circuit. The federal Cable Act regulated signal bleed of sexual images; this is where viewers receive images on cable stations to which they do not subscribe. The federal law required that cable companies either completely eliminate signal bleed of sexual images or limit adult programming to late night hours.
The Supreme Court declared this unconstitutional as an impermissible content-based restriction on speech. The court, in an opinion by Justice Anthony M. Kennedy, held that the government's regulation of sexual speech, but no other content, violated the First Amendment.
Kennedy explained, "As we are considering a content-based regulation, the answer should be clear: The standard is strict scrutiny. This case involves speech alone; and even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be achieved by a less restrictive alternative."
Playboy Entertainment Group establishes many propositions directly relevant to the Military Honor and Decency Act. Sexually explicit material is fully protected by the First Amendment as long as it is not obscene. There is no claim by the government in PMG International that the banned material was obscene.
Indeed, Playboy Entertainment held that strict scrutiny is to be used when the government regulates sexual speech based on its content. Moreover, the case establishes that the availability of the speech in other ways does not excuse an otherwise-impermissible content-based restriction. The fact that cable subscribers could get the material late at night, at their video store or by mail did not allow the government to regulate sexual speech based on its content.
Nor does the fact that military personnel might get prohibited publications through other means justify the law. In fact, military personnel on many bases, especially elsewhere in the world, might have little or no access except through military stores.
The 9th Circuit's justifications for upholding the law were very weak. First, the court said that military exchanges are not public forums and, therefore, that regulations are allowed so long as they are reasonable and viewpoint-neutral. This completely misapplies a body of cases to a situation where they have no application.
In considering when people have a right to use government property for speech purposes, the Supreme Court has characterized different types of places. Public forums are places like streets and parks, which the government must make available for speech. Designated public forums are places that the government could close to speech but chooses to allow speech. Nonpublic forums are places that the government can and does close to all speech, like areas outside prisons and jails. See Perry Educ. Assn. v. Perry Local Educators Ass'n, 460 U.S. 37 (1983) (describing the different types of government property).
But these cases are only relevant when people seek a right to use government property for speech purposes; they have no application when it is the government serving as censor, deciding which magazines with nudity are permissible and which are forbidden.
Moreover, if this line of cases applies at all, the military, by choosing to sell some magazines, has created a designated public forum. The law is clear that discrimination based on content is not allowed in designated public forums.
Second, the 9th Circuit emphasized the need to defer to the military. This decision, though, is not deference but abdication. This is not a case involving the need to restrict speech to preserve military command or the operation of the military. This is about what members of the military can read in private on their own time.
Even under the most deferential constitutional standard, rational basis review, it is impossible to see how it is reasonable for the government to decide that Playboy is permissible but not Penthouse; that Playgirl is too offensive but not Playgirl Centerfolds.
Some may dismiss this case as of little importance. But it touches principles of free speech that go to the very core of the First Amendment. The government should not be in the role of deciding what people, even those in the military, can read or view.
The government never should be in the position of making moral judgments as to whether one magazine is palatable and another too explicit. Even those in the military retain some free speech rights, and the 9th Circuit seriously erred by forgetting this.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
By Erwin Chemerinsky
On Sept. 13, the 9th U.S. Circuit Court of Appeals upheld a federal law that prohibits the sale of sexually explicit material at military bases. PMG International Division L.L.C. v. Rumsfeld, 2002 DJDAR 10619 (9th Cir. Sept. 13, 2002). Under this statute, the government has prohibited the sale of magazines such as Penthouse and Playgirl, although it has allowed the sale of publications such as Playboy and Playgirls Centerfolds.
The law forces the government to do exactly what the First Amendment forbids: make content-based distinctions among speech. Moreover, the 9th Circuit's express deference to the military continues an undesirable trend of judicial deference to the military even when the matter has no relationship whatsoever to military operations.
The case concerned the constitutionality of the federal Military Honor and Decency Act, 10 U.S.C. Section 2489a, which prohibits the sale or rental of sexually explicit material on Department of Defense property.
"Sexually explicit material" is defined as "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," the decency act states.
Department of Defense regulations define prohibited material as that in which the sexual theme is "dominant" or "[l]ewd and intended or designed to elicit a sexual response." Pursuant to this statute and these regulations, the military decides which magazines can be sold and which videotapes rented.
As mentioned above, it has excluded magazines such as Penthouse, Hustler and Playgirl. These, of course, are publications that can be purchased in virtually any airport or on any newsstand in the country. The military, though, has allowed sale of Playboy, Players Calendar Series and Playgirls Centerfolds.
I guess the military believes that people buy Playboy primarily to read the articles but Penthouse and Playgirl to look at the pictures. Any distinction among these publications seems highly subjective and exactly of the sort that the First Amendment prohibits the government from making.
The Supreme Court decision in United States v. Playboy Entertainment Group Inc., 120 S.Ct. 1878 (2000), seems on point and, interestingly, never was mentioned by the 9th Circuit. The federal Cable Act regulated signal bleed of sexual images; this is where viewers receive images on cable stations to which they do not subscribe. The federal law required that cable companies either completely eliminate signal bleed of sexual images or limit adult programming to late night hours.
The Supreme Court declared this unconstitutional as an impermissible content-based restriction on speech. The court, in an opinion by Justice Anthony M. Kennedy, held that the government's regulation of sexual speech, but no other content, violated the First Amendment.
Kennedy explained, "As we are considering a content-based regulation, the answer should be clear: The standard is strict scrutiny. This case involves speech alone; and even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be achieved by a less restrictive alternative."
Playboy Entertainment Group establishes many propositions directly relevant to the Military Honor and Decency Act. Sexually explicit material is fully protected by the First Amendment as long as it is not obscene. There is no claim by the government in PMG International that the banned material was obscene.
Indeed, Playboy Entertainment held that strict scrutiny is to be used when the government regulates sexual speech based on its content. Moreover, the case establishes that the availability of the speech in other ways does not excuse an otherwise-impermissible content-based restriction. The fact that cable subscribers could get the material late at night, at their video store or by mail did not allow the government to regulate sexual speech based on its content.
Nor does the fact that military personnel might get prohibited publications through other means justify the law. In fact, military personnel on many bases, especially elsewhere in the world, might have little or no access except through military stores.
The 9th Circuit's justifications for upholding the law were very weak. First, the court said that military exchanges are not public forums and, therefore, that regulations are allowed so long as they are reasonable and viewpoint-neutral. This completely misapplies a body of cases to a situation where they have no application.
In considering when people have a right to use government property for speech purposes, the Supreme Court has characterized different types of places. Public forums are places like streets and parks, which the government must make available for speech. Designated public forums are places that the government could close to speech but chooses to allow speech. Nonpublic forums are places that the government can and does close to all speech, like areas outside prisons and jails. See Perry Educ. Assn. v. Perry Local Educators Ass'n, 460 U.S. 37 (1983) (describing the different types of government property).
But these cases are only relevant when people seek a right to use government property for speech purposes; they have no application when it is the government serving as censor, deciding which magazines with nudity are permissible and which are forbidden.
Moreover, if this line of cases applies at all, the military, by choosing to sell some magazines, has created a designated public forum. The law is clear that discrimination based on content is not allowed in designated public forums.
Second, the 9th Circuit emphasized the need to defer to the military. This decision, though, is not deference but abdication. This is not a case involving the need to restrict speech to preserve military command or the operation of the military. This is about what members of the military can read in private on their own time.
Even under the most deferential constitutional standard, rational basis review, it is impossible to see how it is reasonable for the government to decide that Playboy is permissible but not Penthouse; that Playgirl is too offensive but not Playgirl Centerfolds.
Some may dismiss this case as of little importance. But it touches principles of free speech that go to the very core of the First Amendment. The government should not be in the role of deciding what people, even those in the military, can read or view.
The government never should be in the position of making moral judgments as to whether one magazine is palatable and another too explicit. Even those in the military retain some free speech rights, and the 9th Circuit seriously erred by forgetting this.
Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
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