JOSÉ A. CABRANES, Circuit Judge:
In this appeal, we address whether Congress exceeded its constitutional authority in banning the sale or rental of "sexually explicit materials" by military personnel acting in an official capacity, including the sale or rental of such materials by "military exchanges."
Heeding the Supreme Court's admonition that "judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged," Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981), we hold that Congress acted well within its constitutional authority to regulate official military conduct.
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. The appellees, who include publishers and producers of sexually explicit materials, argue that their
The Act also does not violate the Fifth Amendment. Congress has considerable leeway in drawing distinctions as it decides how to implement particular policies. Insofar as the Act does not violate the First Amendment, its definitions and distinctions need only be rationally related to legitimate governmental interests. It passes that test, and so does not violate the equal protection guarantee of the Fifth Amendment. The Act's terms and meaning are also sufficiently clear to give the appellees notice of what will no longer be sold in military exchanges, and so the Act is not unconstitutionally vague.
The Constitution does not, of course, stop at the gates of a military base. But within those gates, "the rights of [persons] in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty." Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439 (1974) (internal quotation marks and citations omitted). Congress, acting under its authority to maintain and regulate the armed forces, may constitutionally place some restrictions on the speech that occurs under military command. The Military Honor and Decency Act of 1996 embodies such a set of constitutional restrictions. Accordingly, we vacate the judgment of the district court and remand with instructions to enter judgment for the appellants.
The Military Honor and Decency Act became effective on December 22, 1996, and provides in pertinent part:
10 U.S.C. § 2489a. Pursuant to section 2489a(c), the Department of Defense issued a "directive-type memorandum"
Joint App. at 63, reproducing DoD Directive-Type Memorandum, "Sale or Rental of Sexually Explicit Material on DoD Property" (Dec. 22, 1996). The memorandum also provides that "[m]aterial shall not be deemed sexually explicit because of any message or point of view expressed therein."
In addition, the memorandum establishes the "Resale Activities Board of Review" (the "Board"). The Board is obliged periodically to review material offered for sale or rental on military property to determine whether such material is sexually explicit. Any material that the Board finds to be "sexually explicit" according to the stated terms of the memorandum is to be withdrawn from military retail outlets.
The district court found, and the parties do not dispute, that the Act bans only the sale or rental of sexually explicit material on military property. The Act does not restrict the possession of such material on military property, nor does it prohibit military personnel from sharing such material with their colleagues, so long as they do not sell or rent it. Additionally, military personnel may buy sexually explicit material off military property or order it through the mail. See General Media, 952 F.Supp. at 1075.
Appellee General Media Communications, Inc. ("GMC") publishes various periodicals, including Penthouse. The other appellees are various trade associations representing businesses engaged in the production, wholesale and retail distribution, and sale of periodicals, books, sound recordings, and home videos throughout the country.
Appellees brought suit in the district court in October 1996 seeking an injunction barring the enforcement of the Act and a declaratory judgment that the Act is unconstitutional. Appellees alleged, inter alia, that the Act infringes their rights to free speech and equal protection of the laws, in violation of the First and Fifth Amendments, and that the act is unconstitutionally vague, in violation of the Fifth Amendment. See General Media, 952 F.Supp. at 1075. On December 20, 1996, two days before the Act was to go into effect, the district court issued a temporary restraining order enjoining appellants from enforcing the Act until the court had decided appellees' motion for a preliminary injunction. Following parties' submissions of affidavits and declarations, the district court heard oral argument on December 31, 1996, and on January 13, 1997, the parties agreed to treat appellees' motion for a preliminary injunction as one for a permanent injunction. Id.; see Fed.R.Civ.P. 65(a)(2).
In an opinion and order dated January 22, 1997,
The district court determined that "the purpose of the Act is to ban expression that is lewd." Id. at 1080. The district court further held that "because the First Amendment prevents the government from banning material solely because it is offensive," the Act violates the First Amendment. Id. The district court rejected the government's argument that the Act reasonably seeks to protect the military's professional appearance and to promote the military mission by fostering core values among personnel. The court reasoned that the Act "does nothing
Subjecting the Act to strict scrutiny, the court also held that section 2489a violated the equal protection guarantee of the Fifth Amendment. Id. at 1081-82. The district court noted that Congress made no factual findings, and that there was no evidence in the record, linking the Act to the military's goals of maintaining a professional image and of promoting core values. Similarly, the court found that there was no factual predicate to support the Act's distinction between audio or pictorial expression as opposed to written texts, as well as its differing treatment of books as opposed to periodicals. Id. at 1082.
The district court also held that the Act was void for vagueness because "the term `lascivious' as it is used by the Act contains a subjective element." Id. at 1083. According to the district court, the risk that government officials would arbitrarily classify materials as sexually explicit "impermissibly chills plaintiffs' First Amendment rights," notwithstanding the fact that, as the court conceded, "plaintiffs cannot be directly penalized under the Act because its effect is only to prevent military personnel from stocking their products." Id.
This appeal followed.
We review the district court's order entering a permanent injunction for abuse of discretion, which "can be found if the district court relied upon a clearly erroneous finding of fact or incorrectly applied the law." See Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994) (internal quotation marks omitted). We consider in turn each component of the district court's decision that the Act (i) violates the Free Speech Clause of the First Amendment; (ii) violates the equal protection guarantee of the Due Process Clause of the Fifth Amendment; and (iii) is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment.
A. The First Amendment
1. Forum Analysis
For purposes of the First Amendment's Free Speech Clause, the Supreme Court characterizes government property as falling into one of three categories. First, there is the "traditional public forum," which includes public streets and parks, and other "places which `by long tradition or by government fiat have been devoted to assembly and debate.'" Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). The second category of government property is the "designated" public forum — "a place not traditionally open to assembly and debate," Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449, but "which the State has opened for use by the public as a place for expressive activity," Perry, 460 U.S. at 45, 103 S.Ct. at 955. In both traditional and designated forums that are fully open to the public, content-based regulations of speech are subject to the "highest scrutiny," and are permissible only if "narrowly drawn to achieve a compelling [governmental] interest." International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992).
The third category of property, of most relevance in this case, is known as the "nonpublic forum," which consists of all remaining public property. Id. at 678-79, 112
Governmental intent is said to be the "touchstone" of forum analysis. Paulsen, 925 F.2d at 69. The government does not create a public forum "by inaction or by permitting limited discourse," Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449, and when the state reserves property for its "specific official uses," it remains nonpublic in character, Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761, 115 S.Ct. 2440, 2446, 132 L.Ed.2d 650 (1995). The Supreme Court has recognized that the government's dedication of property to a commercial enterprise is "inconsistent with an intent to [create] a public forum." Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450. Likewise, evidence that the government has created a forum to further efficiency and administrative convenience suggests that the forum is nonpublic. See id. at 805, 105 S.Ct. at 3450-51. It is also well established that the presence of some expressive activity in a forum does not, without more, render it a public forum. Id. (citing United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 130 n. 6, 101 S.Ct. 2676, 2685 n. 6, 69 L.Ed.2d 517 (1981)).
Furthermore, the Supreme Court has emphasized that "it is `the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' ... And it is consequently the business of a military installation ... to train soldiers, not to provide a public forum." Greer v. Spock, 424 U.S. 828, 837-38, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976) (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955)). Accordingly, "[a]lmost without exception, courts have concluded that military bases fall into the non-public forum category." Shopco Distrib. Co. v. Commanding General, 885 F.2d 167, 172 (4th Cir.1989). Military property generally becomes public in character only when the government has intentionally "abandoned any right to exclude civilian traffic and any claim of special interest in regulating expression." United States v. Albertini, 472 U.S. 675, 685-86, 105 S.Ct. 2897, 2905, 86 L.Ed.2d 536 (1985).
Appellees argue that the military exchanges are public forums.
As noted above, governmental intent is the touchstone for determining whether a public forum has been created. In this inherently factual inquiry into intent, we may look to factors such as the government's policy and practice with respect to the forum, the nature of the property, and its compatibility with expressive activity. See Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448-49.
As an historical matter, exchanges and their predecessors, canteens, were established in the 1890s to provide uniformity of operation and control that had been lacking
The exchanges themselves are in no way public, in order to use a military exchange, or to purchase anything inside, patrons must show military identification. Only military personnel, their dependents, orphans, surviving spouses, and certain other affiliated personnel are admitted. These limits on patrons' access serve as another indicator that the government did not intend to dedicate the exchanges to expression and discourse; a limited audience would necessarily hinder, rather than further, the opportunities for communication by speakers such as appellees. The Supreme Court has noted that "separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction." Lee, 505 U.S. at 680, 112 S.Ct. at 2706. As restricted-access areas, even on bases which may be otherwise open to the general civilian public, the exchanges are "separated" properties.
Moreover, far from granting unlimited access to military exchanges to various "speakers," the government has simply chosen to purchase certain magazines, newspapers, and videos from third parties, and has offered this merchandise for resale to its personnel at military exchanges. Much like a private sector retailer, the government identifies the products that it will stock for resale, selecting from a universe of merchandise that is far more extensive than the shelves of an exchange can hold. It does not offer to resell the merchandise of every producer, or every "speaker," who seeks access to those shelves. Cf. Air Line Pilots Ass'n Intl v. Dept. of Aviation, 45 F.3d 1144, 1158 (7th Cir.1995) ("[T]he government's status as a proprietor is a factor entering into public forum analysis. Proprietor status suggests, for instance, that the government has the power to define or restrict the use to which public property should be dedicated." (internal citations omitted)). In particular, the exchanges are only authorized to sell certain enumerated products listed in Department of Defense regulations, including specific provisions governing the sale of reading materials. See, e.g., Joint App. at 147-50, reproducing Memorandum of Understanding, "Selling of Reading Materials in Military Commissaries Located on Army, Air Force Installations" (Apr. 29, 1994).
Because it cannot be said that the military has "abandoned any right to exclude civilian traffic and any claim of special interest in regulating expression," Albertini, 472 U.S. at 685-86, 105 S.Ct. at 2905, we hold that the military exchanges governed by the Act are nonpublic forums.
2. Content & Viewpoint Discrimination
As noted above, the government may reasonably restrict expressive activity in a nonpublic forum on the basis of content, so long as the restriction is not "an effort to suppress the speaker's activity due to disagreement with the speaker's view." Lee, 505 U.S. at 679, 112 S.Ct. at 2705. Appellees argue that the Act is in fact viewpoint-discriminatory
As the Supreme Court has noted, the distinction between content and viewpoint discrimination "is not a precise one." Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 831, 115 S.Ct. 2510, 2517-18, 132 L.Ed.2d 700 (1995). As a general matter, viewpoint discrimination represents a particularly "egregious" subset of content discrimination in which "the government targets not subject matter but particular views taken by speakers on a subject." Id. at 829, 115 S.Ct. at 2516. The Court thus suggests that the distinction is one between "subject matter" (content) and "a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered" (viewpoint). Id. at 831, 115 S.Ct. at 2517. Working from this concededly imprecise distinction, we conclude that the Act does not involve viewpoint discrimination.
The Act prohibits the sale or rental of recordings and periodicals "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(d). Appellees suggest that this construction targets a viewpoint portraying "women as sexual beings or as the focus of sexual desire," as well as a viewpoint of "lasciviousness." Appellees' Brief at 25. Even apart from the absence of any references to gender in the Act or its implementing
We note that the Supreme Court has suggested in dicta, but in an opinion that strictly applied the Constitution's prohibition against viewpoint discrimination, that "[a] State might choose to prohibit only that obscenity which is the most patently offensive in its prurience, i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages." R.A.V., 505 U.S. at 388, 112 S.Ct. at 2546. Thus prurience and patent offensiveness are apparently permissible grounds on which to discriminate — and by implication, they do not constitute "viewpoints" (against which the government may not discriminate).
In sum, we conclude that the Act discriminates on the basis of content, but not on the basis of viewpoint.
3. "Reasonableness" Analysis:
We now reach the question actually decided by the district court: whether the Act's restrictions on expressive activity are reasonable and therefore consistent with the Free Speech Clause of the First Amendment. Employing the same reasonableness standard used by the district court, but reaching the opposite conclusion, we hold that they are.
Because we conclude that the Act regulates speech in a nonpublic forum in a viewpoint-neutral manner, the Act need only be reasonable in light of the purpose of the forum, Perry, 460 U.S. at 49, 103 S.Ct. at 957, and reflect a legitimate government concern, Paulsen, 925 F.2d at 69, in order to pass constitutional muster. The Supreme Court has admonished that a restriction in a nonpublic forum "need only be reasonable; it need not be the most reasonable or the only reasonable limitation." Cornelius, 473 U.S. at 808, 105 S.Ct. at 3452.
Furthermore, we have only recently noted that "[i]t is plain to us that governmental restrictions on speech that would run
This deference arises from the long-recognized distinctive conditions of military life. The Supreme Court has instructed that "[t]he military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps." Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986). This is so because, as the Court has observed, "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian, and ... the rights of [persons] in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty." Parker, 417 U.S. at 744, 94 S.Ct. at 2556 (internal citations and quotation marks omitted). Moreover, "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military ... affairs." Department of the Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 825, 98 L.Ed.2d 918 (1988).
As the Court has emphasized, "civil courts are ill equipped to establish policies regarding matters of military concern." Solorio v. United States, 483 U.S. 435, 448, 107 S.Ct. 2924, 2931, 97 L.Ed.2d 364 (1987) (internal quotation marks omitted). For these reasons, "judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Goldberg, 453 U.S. at 70, 101 S.Ct. at 2655. We are not free to ignore this admonition. We believe the district court erred by not giving due credit to the singular governmental interests in oversight of the military, and to the reasonableness of the measures selected to advance those interests in the instant case.
The appellees argue, and the district court apparently agreed, see General Media, 952 F.Supp. at 1080, that, in order to identify the governmental interest furthered by the Act, a court must find or uncover either legislative history or a statement of the purpose of the statute within its text.
The government argues that the sale by the military of lascivious materials in military exchanges risks sending a message that the military approves of or endorses these materials. The pervasive authority of the hierarchical chain of command in the military setting could reasonably lead a servicemember to conclude that such materials were sanctioned by superior officers — a conclusion that would prove accurate, for example, in the case of Navy exchange facilities, where the Navy's resale regulations provide that
We are neither free nor inclined to disregard or treat cavalierly military goals and policies put forward by the government where Congress has exercised its constitutional responsibility of "mak[ing] Rules for the Government and Regulation of the land and naval Forces," U.S. Const. art. I, § 8, cl. 14, and the Chief Executive and "Commander in Chief of the Army and Navy of the United States," U.S. Const. art. II, § 2, cl. 1, has signed the Act into law and speedily implemented it by executive directive. The government's stated goals are clearly promoted by a policy of ending the military's involvement in the sale of sexually explicit materials. Accordingly, we hold that the Act reflects a legitimate governmental concern.
To pass constitutional muster, the Act must also be "reasonable" in light of the purpose of the forum. See Perry, 460 U.S. at 49, 103 S.Ct. at 957. As outlined above, the purpose of military exchanges is to operate as commercial outlets at which service-members may purchase "articles and services necessary for their health, comfort, and convenience." Revenues from exchanges also supplement the funding of military morale, welfare, and recreation programs. Congress could reasonably conclude that sexually explicit materials are not "necessary" to the health, comfort, and convenience of members of the armed forces. Furthermore, like any commercial retailer, the military must make decisions about what articles to stock on its limited shelf space. In doing so, a retailer may reasonably take into account not only profit margins, but also the special circumstances of its clientele. Here, the special circumstances of the military environment, in which the appearance of professionalism and proper conduct is critical, could reasonably lead to the conclusion that this retailer should not stock sexually explicit materials. The Act is thus reasonable in light of the purpose of the military exchange "forum."
The Act is also a "reasonable" means of promoting the government's legitimate interest in protecting the military's image and its core values. The Act bars the sale or rental
For the reasons set forth above, we hold that the Act does not violate the First Amendment.
B. The Equal Protection Guarantee of the Fifth Amendment's Due Process Clause
The district court also found that the Act violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment. Specifically, it found that the Act's disparate treatment of books and periodicals (barring only the latter), and its restrictions on pictorial and audio expression, but not on written text, violated the Fifth Amendment's guarantee of equal protection. See General Media, 952 F.Supp. at 1082.
We approach equal protection claims under the Fifth Amendment in the same way as we would such claims under the Fourteenth Amendment. See Weinberger v. Wiesenfeld 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). In considering whether legislation violates equal protection principles, "[a]t a minimum, a statutory classification must be rationally related to a legitimate governmental purpose." Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465 (1988). Under this analysis, a statutory classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993).
Classifications affecting fundamental rights, however, must survive heightened scrutiny. Id. The Supreme Court has noted that "[w]hen government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized." Carey v. Brown, 447 U.S. 455, 461-62, 100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980) (emphasis supplied) (finding equal protection violation based on discrimination among expressive activities in public forum); see also Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96-97, 92 S.Ct. 2286, 2290-91, 33 L.Ed.2d 212 (1972) (same). That exacting standard of review is not applicable here, however, because "[t]he key to those decisions [Carey and Mosley] ... was the presence of a public forum." Perry, 460 U.S. at 55, 103 S.Ct. at 960. Here, where a nonpublic forum is involved and where, as we have found, there is no First Amendment violation, the Act need only survive rational-basis analysis. See id. at 54-55, 103 S.Ct. at 959-60; Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231 (2d Cir.1996).
The Act's distinction between written and visual forms of expression, and its ban on lascivious expression contained in audio, video, and periodical materials, but not in books, are rationally related to a legitimate governmental interest. Congress could rationally have concluded that exchanges do not trade extensively in books containing sexually explicit material and that, consequently, it was unnecessary to include books under the Act's prohibition. Congress could also have rationally concluded that visual forms of lascivious expression are more prevalent, more likely to be noticed, or more provocative than written materials, and that accordingly there was a greater need to regulate such materials. See Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) ("The legislature may select one phase of one field and apply a remedy there, neglecting the others."); see also Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 466, 93 L.Ed. 533
C. Vagueness Under the Due Process Clause of the Fifth Amendment
The district court also found the Act to be vague, in violation of the Due Process Clause of the Fifth Amendment. We disagree, believing that the district court here too was insufficiently sensitive to the particular context presented — namely, the specialized and strictly-regulated community of the armed forces.
The Due Process Clause requires that laws be crafted with sufficient clarity to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited," and to "provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The degree of linguistic precision that will satisfy these requirements, however, varies with the nature — and in particular, with the consequences of enforcement — of the statutory provision. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). For example, as the Supreme Court noted in a criminal obscenity case, "[t]he standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement." Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948); see also Village of Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. at 1193-94. At the same time, statutes that implicate constitutionally protected rights, including the freedoms protected by the First Amendment, are subject to "more stringent" vagueness analysis. Village of Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1193-94.
These generally applicable standards, however, are modified in the military setting. We have recently reiterated the longstanding principle that "the [constitutional] tests and limitations to be applied may differ because of the military context," Able, 88 F.3d at 1294, and the Supreme Court has instructed us that substantial judicial deference is required in the military setting, see, e.g., Goldberg, 453 U.S. at 70, 101 S.Ct. at 2654-55. Specifically, the Court has stated that "[f]or the reasons which differentiate military society from civilian society ... Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter." Parker, 417 U.S. at 756, 94 S.Ct. at 2561-62.
Applying these principles to the Act before us, it is clear the statute may fall short of absolute linguistic precision and yet still comply with the requirements of the Due Process Clause of the Fifth Amendment. First, the Act carries with it no criminal penalties; in fact, it specifies no penalties at all. The "penalty" that appellees complain of is an indirect one: if the Act is enforced against military personnel and the Department of Defense (who are, after all, the entities who are barred from selling or renting sexually explicit materials), appellees will suffer the penalty of losing the government's assistance in (re)selling their wares. Appellees will lose their preferred retail outlets for members of the armed forces, but they are not prevented from selling and renting sexually explicit material directly to servicemembers. Second,
Measured by these guideposts, we conclude that the Act does not offend the Due Process Clause of the Fifth Amendment. Many of the terms employed in the Act, read in light of the explanatory directive implementing it, have been found by the courts to be sufficiently clear for constitutional purposes. And whatever ambiguity remains, if any, is constitutionally tolerable in light of the generous vagueness standard outlined above.
For example, the Supreme Court has rejected as "insubstantial" a claim that the term "lascivious" in a criminal statute was unconstitutionally vague. United States v. X-Citement Video, Inc., 513 U.S. 64, 78-79, 115 S.Ct. 464, 472, 130 L.Ed.2d 372 (1994). In doing so the Court explicitly adopted the view of the Court of Appeals for the Ninth Circuit that "lascivious" could be equated with "lewd," id., which the Ninth Circuit described as "a commonsensical term whose constitutionality was specifically upheld in Miller v. California [413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)]." United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th Cir.1992) (internal citation and quotation marks omitted), rev'd on other grounds, 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). The district court in the instant case nevertheless found vagueness in the adjective "lascivious" based on its determination that the word "contains a subjective element." General Media, 952 F.Supp. at 1083. We note that the same could be said for any number of the words which in combination make up our constitutional test for obscenity. See Miller, 413 U.S. at 24, 93 S.Ct. at 2614-15.
The question presented is not whether the Act or its terms include any ambiguity or "subjectivity"; in some expansive sense, all words contain a degree of imprecision and are unavoidably open to interpretation. The question is whether any ambiguity that does exist rises to the level of unconstitutional vagueness under the Due Process Clause of the Fifth Amendment. In light of the permissiveness of the scrutiny that we apply to this military regulation carrying only indirect, financial consequences, we hold that it does not.
(1) In adopting the Act, Congress reasonably furthers legitimate governmental interests — inter alia, upholding military honor, professionalism, and proper decorum by eliminating the appearance of official endorsement inherent in the military's resale of the proscribed materials — and it does so in a nonpublic forum, without engaging in viewpoint discrimination. Accordingly, the Act
(2) The Act's distinctions among the types of materials it regulates are rationally related to legitimate governmental interests. As a result, those distinctions do not run afoul of the equal protection guarantee of the Due Process Clause of the Fifth Amendment.
(3) The Act is sufficiently clear, in light of the appropriate level of scrutiny accorded to a military regulation carrying only indirect, civil penalties, to survive a vagueness challenge under the Due Process Clause of the Fifth Amendment.
Accordingly, the judgment of the district court is vacated and the cause is remanded with instructions to enter judgment for appellants.
PARKER, Circuit Judge, dissenting:
Freedom of speech is one of those liberties which is so fundamentally essential to the preservation of a stable Government that the Government itself is generally prohibited from interfering with it, and as an Article III court, we are bound to protect it. But the power of Congress to "raise and support Armies" and "provide and maintain a Navy" under Article I, § 8, of the Constitution is also critical to the preservation of both a stable Government and to the protection of our liberties, of which the First Amendment is one. In cases of conflict, the balance is often struck in favor of protecting the military mission. This is true, not only with respect to strategic defense matters such as the protection of sailing dates and location of troops,
For these reasons, the Supreme Court has held that "judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981). However, "deference does not mean abdication," id. "[M]en and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind them when they enter military service." Weiss v. United States, 510 U.S. 163, 194, 114 S.Ct. 752, 769, 127 L.Ed.2d 1 (1994) (Ginsburg, J., concurring).
The court below granted appellee's request for permanent injunctive relief on the basis that the Act violated the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. It reasoned that because the purpose of the Act was to ban expression that the government conceded was "offensive" and "because the First Amendment prevents the government from banning material solely because it is offensive," the Act was unconstitutional. The district court did not decide whether a military exchange is a public or nonpublic forum, nor whether the Act was viewpoint discriminatory. I agree with the majority that, as these issues are questions of law, we are equally well positioned to decide them. However, that is where my agreement with the majority ends. I would affirm the district court's opinion.
The Military Honor and Decency Act of 1996 does not prohibit the distribution of all sexually explicit material in military exchanges. Nor does it ban all depictions of nudity. Instead, it bars only the distribution of sexually explicit material, "the dominant theme of which depicts or describes nudity ... in a lascivious way." Because I believe this is viewpoint discrimination, and the government has failed to meet its burden of justification for this restriction on speech, I respectfully dissent.
The Act's definition of sexually explicit material includes within its scope much that is not encompassed within the Supreme Court's definition of "obscenity," which enjoys virtually no First Amendment protection. To be "obscene" under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), a publication must (a) taken as a whole and applying contemporary community standards, appeal to the prurient interest, (b) contain patently offensive depictions or descriptions of specified sexual conduct, and (c) on the whole have no serious literary, artistic, political or scientific value. Id. at 24-25, 93 S.Ct. at 2614-16. See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 497, 105 S.Ct. 2794, 2798, 86 L.Ed.2d 394 (1985). The Act does not refer to the prurient interest or to the standards of the community. Nor does it require that the work lack literary, artistic, political or scientific value. The Act therefore covers both protected and unprotected speech. See also Sable Communications, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment."). It is the protected speech that is addressed here.
It is axiomatic that the government may not restrict speech because of the message it conveys. Police Dept. v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972); see also Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828, 115 S.Ct. 2510, 2516 (1995) ("In the realm of private speech or expression, government regulation may not favor one speaker over another."). Moreover, "[w]hen government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is
As the majority points out, the distinction between content and viewpoint discrimination is not "a precise one." However, the majority's assertion that "lascivious" is an adjective identifying subject matter does not advance the inquiry: viewpoints and subject matters are both identified by some adjective — the question is whether the statute will skew one side of a debate. "Indecent" speech, or even "sexually explicit" speech, may be regarded as a category of speech, and the regulation of such speech is a content-based regulation. See Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2836. To divide that category between depictions of nudity and other depictions, is yet another division, one step closer to viewpoint discrimination. But in banning distribution of only those depictions of nudity that are "lascivious," defined as "lewd and intended or designed to elicit a sexual response," the government is necessarily attempting to regulate a specific perspective — a point of view.
Portrayals of nude men and women designed to elicit a sexual response illustrate an idea: that lust or sexual desire is good, that men and women are sexual beings, or, if depicted in a submissive way, that women or men are submissive objects for humiliation or domination. Depictions of nude men and women in nonsubmissive ways, or in ways not designed to arouse, are permitted under the Act. This is, under relevant precedent, viewpoint discrimination. See, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2147-48, 124 L.Ed.2d 352 (1993) (denying permission to evangelical church to use school facilities to show a film about child rearing and family values solely because the film dealt with a subject from a religious perspective was viewpoint discriminatory when that subject had not been placed off limits to any and all speakers); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985) (striking down an ordinance prohibiting trafficking in pornography, where pornography was defined as expressive material that depicts women as sexual objects, or as enjoying or deserving humiliation), aff'd mem., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); AIDS Action Comm. v. MBTA, 42 F.3d 1, 12 (1st Cir.1994) (holding that transit authority's refusal to accept advertisements regarding AIDS prevention for display in subway cars when it had allowed other sexually explicit material to be advertised which represented "the conventional exploitation of women's bodies" was viewpoint discrimination). It is no answer that the Act excludes such depictions of both men and women: the exclusion of "an entire class of viewpoints" is "just as offensive to the First Amendment as exclusion of only one." Rosenberger, 515 U.S. at 831, 115 S.Ct. at 2518. If multiple voices are silenced, the debate is simply skewed in multiple ways. Id.
Nor is this form of expression any less deserving of protection because it may work through "inexpressible emotions," Cohen v.
Indeed, the government's defense of the statute unmasks the Act's viewpoint discrimination. The government asserts that the statute serves the government's interest in preserving "the military's image of honor, professionalism, and proper decorum." The underlying premise is that the military's distribution of depictions of nudity that are lewd or intended to elicit a sexual response are inconsistent with "honor, professionalism, and proper decorum." Yet the decision to ban distribution of such material strips military personnel of the right to decide for themselves whether such depictions are consistent with those values.
Thus, the majority's claims that one does not "go about discussing and considering the political issues of the day from a lascivious viewpoint," is beside the point. It ignores the political issue of whether nonobscene, lascivious material, whatever form it may take, is necessarily inconsistent with the military's image of honor, professionalism and decorum, or the promotion of core values.
The majority's claim that the Supreme Court's dicta in R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992), that "[a] State might chose to prohibit only that obscenity ... which involves the most lascivious displays of sexual activity," authorizes the government to ban distribution of all lascivious portrayals of sexually explicit materials, ante at 281, is misguided for two reasons. Not only is nonobscene sexually explicit speech protected, unlike the obscene speech which is the subject of the Supreme Court's hypothetical, but to exclude only the most lascivious displays of sexual activity still allows in "the marketplace of ideas" the views expressed by lascivious displays of sexual activity, even if it prohibits the most extreme of those views.
Laws which favor one viewpoint over another are traditionally subjected to the highest
In Parker, the Court upheld a court-martial conviction of an army captain for conduct designed "to promote disloyalty and disaffection among the troops" for publicly advocating that no "colored soldier" should go to Vietnam, and should refuse to fight if sent because they are discriminated against. 417 U.S. at 758, 94 S.Ct. at 2562-63. The Court stated:
Thus, it is clear that, on a military base, some regulations
In Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), the Supreme Court considered a regulation which authorized an army base commander to exclude campaign literature (in the form of leaflets and pamphlets) from the base, when such literature presented a "clear danger to the loyalty, discipline, or morale" of the troops. Id. at 350, 100 S.Ct. at 597. The Court emphasized that the regulations "specifically prevent[ed] commanders from halting the distribution of materials that merely criticize the Government or its policies" and that under the regulations the Air Force commanders had no authority "to prohibit the distribution of the magazines and newspapers through regular outlets such as the post exchange
Last year this Circuit picked up the intermediate standard of review articulated in Brown v. Glines and stated in dicta that the test should be applied to content-based restrictions as well as content-neutral restrictions:
Able v. United States, 88 F.3d 1280, 1296 (2d Cir.1996). Although I am not convinced that it is appropriate to take the further step of applying this intermediate standard of review to laws which discriminate on the basis of viewpoint, I do not need to decide that issue here. Even applying the intermediate standard of review in this case, the government has failed to meet its burden.
The government argues that pornography is "controversial and unpalatable to many" and that "Congress could therefore reasonably conclude that the exchanges' traffic in lascivious merchandise tarnishes the military's image of honor, professionalism, and proper decorum." It is, additionally, argued that the possible perception of military personnel that lascivious material sold at the base exchanged has been approved by the chain of command "subverts the military's goal of promoting core values." The government further claims that the Act is "narrowly tailored to prevent only the official condonation of this merchandise" because it leaves military personnel free to possess, view or listen to sexually explicit material either on or off base, and to acquire such material from private retailers through the mail or from each other if done unofficially.
The fact that Congress "could" have drawn such a conclusion, however, provides the Court no reason to conclude that Congress in fact did so, nor does it assist the inquiry whether a ban of distribution is necessary to protect the military's image. Significantly, the government offers no evidence, by way of congressional hearings, official reports, explicit congressional findings of fact, or military judgment to support its claims. Instead, the government urges us to accept its unsubstantiated post-hoc rationalization on the principle of judicial deference to congressional choice.
There is no question that "when evaluating whether military needs justify a particular restriction ... courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. This is not just because the military is a "specialized society separate from civilian society," and because the "`rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty," Parker, 417 U.S. at 743-44, 94 S.Ct. at 2555-56 (quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953)), but because, as this Court in Able pointed out, "[a]s judges, we are `ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,'" 88 F.3d at 1293 (quoting Goldman, 475 U.S. at 507, 106 S.Ct. at 1313).
However, the precedents supporting judicial deference to military judgment have relied on substantial evidence of the types outlined above, to justify the infringement on the constitutional right at issue. See, e.g., Rostker, 453 U.S. at 72-74, 101 S.Ct. at 2655-57 (upholding, over an equal protection challenge, a regulation authorizing the President to require registration for military service of males but not females, deferring to extensive
I do not doubt that the government can lawfully enact statutes that promote the military's image of honor, professionalism, and proper decorum, or foster core values. It can, for example, validly prosecute military personnel for conduct "unbecoming an officer and a gentleman." See, e.g., Holley v. United States, 124 F.3d 1462 (Fed.Cir.1997) (upholding discharge of officer for taking drugs and contaminating sample for drug test). Conduct "unbecoming an officer and a gentleman" may even comprise speech. See, e.g., Parker, 417 U.S. at 738, 94 S.Ct. at 2553 (noting that Levy was also convicted for "wrongfully and dishonorably" making statements provoking disloyalty). The question is whether that is the substantial governmental interest that motivated Congress in this case. As the Supreme Court stated in Turner Broad. Sys.:
512 U.S. at 664, 114 S.Ct. at 2470 (citations omitted).
As the district court found, there is no evidence on the record "to show that the actual sale or rental of sexually explicit material — as opposed to its possession — causes the alleged harm to the military's core values and appearance to the civilian world." On appeal, the government urges us to accept the mere possibility that military personnel might view sale of lascivious materials as official endorsement of such materials. Besides the fact that there is no evidence that this "risk" of perceived official endorsement is real, it defies common sense. Prior to the Act, local exchanges were directed to "[s]elect magazines based on merchandising considerations like consumer demand [and] shelf space." EOP Procedures, 40-11, Special Retail Programs, Chapter 10, § 10-2. Thus, the magazine selection reflect the views of the military personnel, not that of the government. Additionally, the military exchanges also sell alcohol and tobacco, and there is no suggestion that the military is regarded as endorsing drinking or smoking. And if the military still remained genuinely concerned about the mere possibility of the appearance of approval, it could easily place a sign above the materials stating that "The Military Disapproves The Sale Of All Sexually Explicit Material Depicting Nudity In A Lascivious Way."
In this case, the government simply advances post-hoc rationalizations which find no support in Congressional history or military consideration. To rely on the mere fact that a statute has been enacted as evidence of congressional judgment on the issue addressed in the Act, and assert that a court should give deference to that judgment because it involves a matter of military concern, would mean that no regulation in the military context that infringes on constitutional rights would ever be struck down. Enactment of the legislation would be sufficient by itself to support its validity. If this is "deference to congressional choice," Rostker, 453 U.S. at 67, 101 S.Ct. at 2653, then we have failed to heed the Supreme Court's warning that "deference does not mean abdication," id. at 70, 101 S.Ct. at 2655, and have failed to fulfill "our ultimate responsibility to decide the constitutional question," id. at 67, 101 S.Ct. at 2653, and to protect the liberties which our Constitution guarantees. I, therefore, respectfully dissent.