Petition for Writ of Certiorari — General Media Communications, Inc. v. Cohen

eupretre Couft, U.8.

FILED

No—— 9 %1 B35 NAR 161998

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

GENERAL MEDIA COMMUNICATIONS, INC.,

INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION,

NATIONAL ASSOCIATION OF RECORDING MERCHANDISERS,

PERIODICAL AND BOOK ASSOCIATION OF AMERICA, INC.,

RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC.,

and VIDEO SOFTWARE DEALERS ASSOCIATION,

‘: Petitioners,

WILLIAM S. COHEN, et al.,

Respondents.

¢

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

BRUCE J. ENNIS, JR.*

ANN M. KAPPLER

JODIE L. KELLEY

GREGORY P. MAGARIAN

JENNER & BLOCK

601 Thirteenth Street, N.W.

Twelfth Floor

Washington, D.C. 20005

(202) 639-6000

Attorneys for Petitioners

* Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

Section 343 of the National Defense Authorization Act

for Fiscal Year 1997, codified at § 10 U.S.C. § 2489a

(the “Act”), bans the sale or rental on Department of

Defense property, including through the military exchange

system, of some forms of expressive material, but not of

other forms, if “the dominant theme of [the material]

depicts or describes nudity . . . in a lascivious way.” The

constitutional questions presented are:

1. Whether military exchanges, which since their in-

ception have been used for the dissemination of constitu-

tionally protected expressive materials based on neutral

criteria such as customer demand, are designated public

fora, in which the government cannot ban the dissemina-

tion of protected speech on the basis of content absent

a compelling interest achieved through narrowly tailored

means.

2. Whether banning the sale or rental of depictions or

descriptions of nudity presented in a lascivious way, but

not in ways that are chaste or tasteful, constitutes im-

permissible discrimination against the viewpoints attrib-

uted to and expressed by the producers and distributors

of the banned material.

3, Whether the Act irrationally and unreasonably bans

some forms of speech but not others, utilizing impermis-

sibly vague terms, in violation of the First and Fifth

Amendments.

(i)

ii

RULE 14.1(b) AND RULE 29.6 STATEMENTS

Pursuant to Rule 14.1(b) of the Rules of this Court,

petitioners state that the list of parties in the court of

appeals whose judgment is sought to be reviewed is as

follows:

General Media Communications, Inc.

International Periodical Distributors Association

National Association of Recording Merchandisers

Periodical and Book Association of America, Inc.

Recording Industry Association of America, Inc.

Video Software Dealers Association

William J. Perry, in his official capacity

William S. Cohen, in his official capacity

Department of Defense

Pursuant to Rule 29.6 of the Rules of this Court, peti-

tioners state as follows:

None of the named petitioners has any corporate par-

ent, subsidiary or affiliate which is publicly held. (For

this purpose, members of trade associations have not been

considered affiliates of such trade associations).

TABLE OF CONTENTS

QUESTIONS PRESENTED ...........c.cccsscessccocesceccveceoeesece.

RULE 14.1(b) AND RULE 29.6 STATEMENTS

PI TE OP PIR IIE oso caviecerrasescvncsccvencooseschorocerncss

I cdsanbvate

JURISDICTION ......................

STATUTORY PROVISIONS INVOLVED ......

REA ECCANS SEES RTRSERS Sa O

REASONS FOR GRANTING THE PETITION

I.

II.

ITI.

THE TEST APPLIED BY THE COURT OF

APPEALS FOR DETERMINING WHETHER

GOVERNMENT PROPERTY IS A DESIG-

NATED PUBLIC FORUM CONFLICTS WITH

THIS COURT’S PRECEDENTS AND WITH

THE TEST APPLIED IN OTHER COURTS

OF APPEALS, AND IS FUNDAMENTALLY

I Ricoh i iahet nth nRiccastnst ike Xorseix soice ode.

THE TEST APPLIED BY THE COURT OF

APPEALS FOR DETERMINING WHETHER

A REGULATION OF SPEECH IS VIEW-

POINT-BASED CONFLICTS WITH THIS

COURT’S PRECEDENTS AND WITH THE

TEST APPLIED IN OTHER COURTS OF

APPEALS, AND IS FUNDAMENTALLY

EEE EIPERE EES SION ot a Ae REO RE ee ee ere

THE COURT OF APPEALS’ ANALYSIS IN

CONCLUDING THAT THE ACT IS REASON-

ABLE IN LIGHT OF THE PURPOSE OF EX-

CHANGES CONFLICTS WITH THE ANALY-

SIS EMPLOYED BY OTHER COURTS OF

APPEALS, AND IS FUNDAMENTALLY

I ie ei Se

co ig ESOS SCRE EEE Sn eR eee Cee

12

19

28

30

iv

TABLE OF CONTENTS—Continued

APPENDICES

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

OPINION, U.S. Court of Appeals

for the Second Circuit, November

7 |. BRITE Reisner Lem ee Cony

Amended OPINION and ORDER,

U.S. District Court for the Southern

District of New York, February 20,

ORDER, denying petition for re-

hearing, U.S. Court of Appeals for

the Second Circuit, February 3,

I i ih a a ie

ORDER, Granting a Stay of Man-

date Pending Petition for Certiorari,

U.S. Court of Appeals for the Second

Circuit, February 138, 1998 ................

Section 343 of the National De-

fense Authorization Act for Fiscal

Year 1997 (Pub. L. No. 104-201),

SD Seis ee ckdind eo

DoD Directive-Type Memorandum

—Sale or Rental of Sexually Ex-

plicit Material on DoD Property

(eff. Dec. 22, 1996) ...... ES cP eralonee

Page

la

45a

68a

70a

72a

74a

v

TABLE OF AUTHORITIES

CASES Page

AIDS Action Committee v. Massachusetts Bay

Transportation Authority, 42 F.3d 1 (1st Cir.

ERR ON LR ESS ha Bidet Tie aS AD ae

Air Line Pilots Association International v. De-

partment of Aviation of the City of Chicago, 45

am beeen (eee Cm. Weer i 15

American Booksellers Association, Inc. v. Hudnut,

771 F.2d 323 (7th Cir. 1985), aff'd mem., 475

bS

~]

Soe: SE: EE dee or Cece 21

American Council of the Blind v. Boorstin, 644

ss MS Cs, OR gc 21

Arkansas Writers’ Project, Inc. v. Ragland, 481

Ries ee (RAED Wise eG onan he 23, 24

Bethel School District No. 403 v. Fraser, 478 U.S.

EE A i a a ee aaa 21

Board of Education v. Pico, 457 U.S. 853 (1982)... 21

Brown v. Glines, 444 U.S. 348 (1980) _.......... eee 13

Brown v. Palmer, 944 F.2d 732 (10th Cir. 1991... 16

Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997)... 27

Church on the Rock v. City of Albuquerque, 84

F.3d 1273 (10th Cir.), cert. denied, 117 S. Ct.

RE gt SAR ERA SPD em CE SOUR ga ees, Veena 28

City of Madison Joint Sch. District v. Wisconsin

Employment Relations Commission, 429 U.S.

RE ARs eodalic diate ee cae ssmeghte a, 17

Cornelius v. NAACP Legal Defense & Education

Fund, Inc., 473 U.S. 788 (1985) _.-........14, 19, 28, 29

Finley v. Nations Endowment for the Arts, 100

F.3d 671 (9th Cir. 1996), cert. granted, 118

is RA We CREE as ee eae ; 26

Flower v. United States, 407 U.S. 197 (1972)... 16, 16

Forbes v. Arkansas Education Television Commis-

sion, 93 F.3d 497 (8th Cir. 1996), cert. granted,

RAT ere, Ae CE a , 24, 3%

Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d

Rar Rete Ge ME he sae te 26, 27

Greer v. Spock, 424 U.S. 828 (1976) Se GOs EE 18, 15

Grosjean v. American Press Co., 297 U.S. 233

DBR PRIE I aaa. Sear eRe Tele LSC OE TE 23

vi

TABLE OF AUTHORITIES—Continued

Page

Grossbaum v. Indianapolis-Marion County Build-

ing Authority, 63 F.3d 581 (7th Cir. 1995)........ 28

International Society for Krishna Consciousness,

FOG. @, TOW, GOD Wee. GER CEI TID nesenecccecvecsnnsvcnnssses 18

Kingsley International Pictures Corp. v. Regents

of the University of New York, 860 U.S. 684

CC SIIOE chenvagebletabshesatskacichnt adbeidiineianin cai tatetae aicta 22

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d

8 AR RR Rp en LTE ELE En VR EO 16

Lambs Chapei v. Center Moriches Union Free

School District, 508 U.S. 384 (1993) .0.000000..... 24, 25, 27

Lehman v. City of Shaker Heights, 418 U.S. 298

RITE iinet iecitidsiaciiedermagetguiiitincaisitnetcccieianeiets Aas ta 18

Minneapolis Star & Tribune Co. v. Minnesota Com-

missioner of Revenue, 460 U.S. 575 (1983) 23

Multimedia Pub. v. Greenville-Spartanburg Air-

port Dist., 991 F.2d 154 (4th Cir. 1993) ........... 30

Parker v. Levy, 417 U.S. 738 (1974) ............ ae 18

Perry Education Association v. Perry Local Edu-

cation Ass’n, 460 U.S. 37 (1988) ..00000000............14, 18, 19

R.A.V. v. City of St. Paul, 505 U.S. 3877 (1992)...... 22

Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997). 15, 16

Rosenberger v. Rector and Visitors of the Univ.

of Va., 515 U.S. 819 (1995)......... SARS. 24, 25, 26, 27

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).. 29

Searcey v. Harris, 888 F.2d 1314 (11th Cir.

SUITE lnsiinicenisseneiteceeepentin aided ino sialiesaeeuuh- dinate lena ar 29

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

PU IIIOE eickics nesscasntisniduabee auntie Cae cae 14

Summum v. Callaghan, 130 F.3d 906 (10th Cir.

PU bhidcs ciiciesas aside daihehuta late Cidtaciadins apemeet a. 28

Tele-Communications of Key West, Ince. v. United

States, 767 F.2d 1880 (108B).................................. 15

Texas v. Johnson, 491 U.S. 397 (1989) ..............21, 22, 24

Travis v. Owego-Apalachin Sch. District, 927 F.2d

688 (2d Cir. 1991) .. Me Mi 16

Tucker v. State of Cal. Dept. of Educ. 97 F. 8d 1204

(gs |, EE COMO R

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Albertini, 472 U.S. 675 (1985)... 15

United States v. Kokinda, 497 U.S. 720 (1990)...... 18

West Virginia Board of Education v. Barnette,

319 U.S. 624 (19438) ....... i 21

Widmar v. Vincent, 454 U.S. 263 (1981) ............. .. 16,17

FEDERAL LEGISLATIVE MATERIALS

10 U.S.C. § 2489a 0.0000... Far ry ab as OU SOIR Ta passim

gE ES LAC RT OTL Gates 7

10 U.S.C. § 2489a (b) 000000. AS AEE AERO OL 7

rite ae EC a 7, 19, 22, 26

I ans i 7

es Sth Bf} ERR RaRE rreneernteet SUAS ATER 26

28 U.S.C. § 1254(1) ............. IRL PRIS a he 1

142 Cong. Rec. H8822 (July 30, 1996) . ia — >

Roscoe Bartlett Press Release, May 1, 1996 ....... 6

Roscoe Bartlett Press Release, Sept. 18, 1996... 6

STATE STATUTES

UE RI cee er 26

MISCELLANEOUS

Robert Cohen, New Military Enemy: Hustler and

Playboy Amendment Can Ban Sales on U.S.

Bases, Star-Ledger, May 2,1996 ..... 6

Guy Gugliotta & Bradley Graham, Off-the- Shelf

Defense Policy, Wash. Post, May 8, 1996... 5, 20

Meyer Scolnick & Joseph Packer, Evolution of the

Army and Air Force Exchange Service, JAG L.

Rev. Sept-Oct 1966 . cies 3,4

DoD Active Duty Military Personnel Strengthens

by Regional Area and by Country (309A),

ek SP Mia CARR DTTC ee ER 13

DoD Defense Commissary “Agency, Facts about

DeCA, hhtp ://www.dtic.mil/deca/decafacts.

a NRRL Rca aN CAE PR or Ma Rae

Der? Divective Ne. 1800.9 ..............,:.....<............... 2,4

AAFES Special Retail Programs EOP 40-11 (No-

IS SUE Sos de eA ee wee fe

viii

TABLE OF AUTHORITIES—Continued

Page

AAFES Worldwide Locations, http ://www.aafes.

com/pa/corporate—profile.htm ............ 2

AAFES, Corporate Profile, http: / eww. aafes.

com/pa/corporate—profile.htm .. ed 3

Navy Resale Manual, Pub. No. 145, Jan. 1989... 4

NEX-Navy Exchange Service Command, About

Us, http://www.navy-nex.com/aboutus/history,

a

PETITION FOR A WRIT OF CERTIORARI

Petitioners General Media Communications, Inc., et al.,

respectfully petition for a writ of certiorari to review a

judgment of the United States Court of Appeals for the

Second Circuit.

OPINIONS BELOW

The split decision of the court of appeals (Pet. App.

la-44a) is reported at 131 F.3d 273. The amended

opinion of the district court (id. 45a-67a) is reported at

952 F. Supp. 1072. The court of appeals’ orders denying

rehearing and suggestion for rehearing en banc (id. 68a-

69a), and granting a stay of mandate (id. 70a-7la) are

not reported.

JURISDICTION

The court of appeals entered its judgment on Novem-

ber 21, 1997, and denied a timely filed petition for rehear-

ing and suggestion for rehearing en banc on February 3,

1998. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 343 of the National Defense Authorization Act

for Fiscal Year 1997, codified at 10 U.S.C. § 2489a,

and the Department of Defense Directive-Type Memo-

randum implementing Section 343 are reproduced in the

Pet. App. at 72a-78a.

STATEMENT

Background of the Military Exchange System. The De-

partment of Defense (“DoD”) operates an extensive retail

system, both within the United States and abroad, serving

active and retired military personnel and their dependents.

The retail operations range in size from large facilities,

such as military base exchanges (which can include shop-

ping centers, malls, home & garden centers, and ware-

houses), to small facilities, such as troop stores and stores

aboard ships. Decl. of Stephen Rozzetti § 2 (J.A. 108).’

The Army and Air Force Exchange Service (AAFES)

operates about 10,500 facilities, located in 25 countries;

the Navy Exchange Service Command (NEXCOM) oper-

ates 114 land-based exchanges in addition to ships’ stores;

the Marine Corps operates additional exchanges at its

installations.”

Exchanges exist to provide military personnel and their

dependents with access to a variety of “articles and serv-

ices necessary for their health, comfort, and convenience.”

DoD Directive No. 1330.9 at 1 (J.A. 114). The system

is designed to ensure that military personnel—no matter

where located—have a “convenient” place to purchase

all the types of materials and services that would be avail-

able to the general public. The “Post Exchange System

is the substitute for the multitude of shopping locations

the average American takes for granted everyday.” Decl.

of Paul Bucha (J.A. 498}. For service members stationed

in certain locations abroad and on board some ships, ex-

changes may be the only place they can obtain American-

made materials.

Although exchanges offer military personnel substantial

cost savings, material provided through the exchange sys-

1J.A. refers to the Joint Appendix in the Second Circuit. Gen-

erally, these retail outlets are separated into “commissaries” and

“exchanges.” Commissaries essentially serve as grocery stores, and

primarily sell uncooked food and household items, such as paper

towels. Exchanges operate more like large department stores. They

sell goods ranging from appliances to automotive supplies to toys

and clothing, and may also seil prepared foods and alcohol. Ses

DoD Defense Commissary Agency, Facts about DeCA, http://

www.dtic.mil/deca/decafacts.html (visited Mar. 2, 1998). (All In-

ternet citations refer to official government Websites.) Both types

of facilities will be referred to as “exchanges.”

2See AAFES Worldwide Locations, http://www.aafes.com/pa/

corporate_profile.htm (visited Mar. 2, 1998) ; NEX-Navy Exchange

Service Command, About Us, http://www.navy-nex.com/aboutus/

history.html! (visited Mar. 2, 1998).

3

tem is not subsidized by the federal government. Sce

J.A. 35, 38, 42, 45. Rather, the government generally

negotiates to obtain materials at low wholesale rates and

then sells to military personnel at retail prices lower than

those charged outside the exchange system. See id., J.A.

Sl. The savings is a non-cash form of indirect pay; ex-

changes are provided to military personnel in lieu of

higher salaries and pensions.* The government. utilizes

the profits generated by exchange sales to finance the

exchange system and to fund services and activities for

the morale, welfare, and recreation of military personnel,

such as libraries, chapels, and child care. Facts About

DeCA, supra n.1.'

DoD maintains exchanges as “incentives to enlistment

and reenlistment, helping to maintain morale by (1) mak-

ing family living expenses more manageable, and (2) by

providing familiar products for sale at overseas locations.

By encouraging reenlistment, [exchanges] also help main-

tain acceptable manpower levels of trained, skilled per-

sonnel, which reduces the need to train new personnel.”

Id. The military branches describe the “mission, goal, and

driving force” of exchanges they run as improving the

quality of life for military personnel. E.g., Navy Ex-

change Service Command, supra n.2. Surveys of service

members consistently place the exchange system at the

top of their most valued non-pay compensations. Facts

about DeCA, supra n.1.

* DoD estimates that customers save an average of 29.7 percent

at commissaries and approximately 20 percent at exchanges, Facts

About DeCA, supra n.1.

* Exchanges are almost 100% self-funded, requiring little, if any,

congressionally appropriated money. See Meyer Scolnick & Joseph

Packer, Evolution of the Army and Air Force Exchange Service,

JAG L. Rev. Sept-Oct 1966 at 19 (J.A. 345); AAFES, Corporate

Profile, http ://www.aafes.com/pa/Corporate—Profile.htm (visited

Mar. 2, 1998) (2% of budget is appropriated funds) ; NEX-Navy

Exchange Service Command, supra, n.2 (only ships’ stores use ap-

propriated funds).

4

Military exchanges have always served a communica-

tive function. At their inception, in the late 1800's, ex-

changes were located whenever practicable in the same

buildings as the library or reading room. Scolnick and

Packer, supra n.4 at 27 (J.A. 353). One primary mis-

sion of the early exchanges was the provision of “news-

papers and magazines” to military personnel. Id. at 24,

25 (J.A. 350, 351). This communicative function has

continued to this day. Listed among the products ex-

changes are authorized to provide are “books, manuals.

and periodicals.” DoD Directive No. 1330.9 at 2-1-3

(J.A. 135). Exchanges thus function, in significant part,

as bookstores or newsstands.

Consistent with their mission to be “the primary source

of nonsubsistence resale merchandise and services for mil-

itary personnel on DoD installations,” id. at 1 (J.A.

114), exchanges have traditionally sold and rented a

broad cross-section of privately published expressive ma-

terial. and have eschewed content-based and viewpoint-

based discrimination and moralizing as a basis for select-

ing the materials offered. Publishers wishing to dissem-

inate information through exchanges are permitted to do

so, and military personnel and their families are therefore

able to receive such information, as long as certain neu-

tral criteria are met, including demand—both current and

measured by past sales—and available shelf space. See,

e.g., Navy Resale Manual, Pub. No. 145, Jan. 1989, at

4-16 (J.A. 204).

Applying these neutral criteria, the standards governing

exchange resale practices expressly recognize that ex-

changes will be offering “adult literature, music and video

recordings.” Jd. Periodicals such as Penthouse and Play-

boy have been available through the exchanges for as long

as they have been popular national magazines. Demand

for the magazines is high. AAFES has reported that its

exchanges sell 12.6 million copies of 219 different “adult”

magazines every year out of a total of 57 million maga-

5

zines of all kinds.° In 1995, for example, approximately

220,600 copies of Penthouse were sold at military ex-

changes located in the United States, and another 47,000

copies were sold at exchanges and ships’ stores abroad.

Aff. of Joseph M. Gallo € 4 (J.A. 42); see also Pet. App.

49a & n.4 (Playboy sales). Sales of “adult” materials

generate considerable profit for the government. It is esti-

mated that in 1995 the exchange system made approxi-

mately $459,000 on sales of Penthouse alone. Gallo Aff.

«5 (J.A. 42). These profits fund quality-of-life programs

for military personnel and their families.

Background of the Act. In early 1996, three Congress-

men—Representatives Robert Dornan (R-Cal.), Christo-

pher Smith (R-N.J.) and Roscoe Bartlett (R-Md.)— in-

troduced a bill, which they called the Military Honor and

Decency Act, that would ban the distribution of “adult”

material in military exchanges. The bill was eventually

enacted, without any title, as Section 343 of the National

Defense Authorization Act for Fiscal Year 1997 (Pub. L.

No. 104-201, 110 Stat. 2422) (codified at 10 U.S.C.

§ 2489a) (the “Act”). No hearings were held regarding

the Act, and no committee reports were issued.

DoD played no part in the drafting or enactment of the

Act. DoD did not request or support the Act. Indeed,

when DoD’s opinion regarding such a ban had been sought

in the past, it stated that such a ban “would raise serious

constitutional and administrative problems.”* The mili-

tary did not contend that the Act was necessary to sup-

port the military’s ability to carry out its mission, or to

maintain loyalty, discipline, or morale in the armed forces.

In fact, there is no evidence in the legislative history or

* Guy Gugliotta and Bradley Grahm, Off-the-Shelf Defense Policy,

Wash. Post, May 8, 1996, at A3.

® Memorandum for Director, Personnel Administration and Serv-

ices, Office of the Ass’t Secy. of Defense, from H. Lawrence Garrett,

III (Gen. Counsel of the DoD), re: “Adult-Oriented” Magazines in

Military Exchanges, dated Sept. 18, 1996, reprinted in Supplemental

Appendix (“S.A.”) submitted in the Second Circuit, at 5-7.

6

elsewhere that the Act was enacted in response to any

military concern or problem.

Although the Act contains no express purpose, its spon-

sors made clear their intent. Congressman Dornan stated:

This garbage, this direct assault on my mother, who

has long gone to heaven, my wife who is very much

alive, my sisters-in-law, my aunt who is alive in her

90’s and my three daughters and five granddaughters

and maybe a sixth granddaughter on the way.

Pornography is a frontal, direct, vicious, specific

assault upon women. It treats them—well, some

homosexual pornography is a direct assault upon

boys or young men or ephebes—young men 18, 19,

20—just barely over the age in most States of ma-

turity. Most pornography is a direct assault on

women, cheapening [them] down like slavery to a

product, meat on a rack.

[M]acho guys . . . think demeaning women by buy-

ing this garbage is manly, and it is not. . . . Some

[exchange] managers with guts, practicing Protestants

and Christians and observant Jews who work in the

PX system saying, Hey, this is enough... . I want

to junk it anyway. ... That helps commanders to

take that, not puritanical, but strong, manly decent

line.

142 Cong. Rec. H8822, H8824 (July 30, 1996). This

sentiment was echoed by other sponsors. E.g., Robert

Cohen, New Military Enemy: Hustler and Playboy Amend-

ment Can Ban Sales on U.S. Bases, Star-Ledger. May 2.

1996, at 3 (quoting Rep. Bartlett during markup as stat-

ing “This is smut. This is demeaning to women and it

leads to aberrant behavior.”). Because DoD’s views were

not solicited and there were no hearings, the sponsors also

mistakenly believed the government subsidizes materials

offered through exchanges, and that banning adult mate-

rials was necessary to stop their subsidization. See Bart-

lett Press Release, May 1, 1996; Bartlett Press Release,

Sept. 18, 1996 (S.A. 3). Nowhere in the sponsor’s com-

7

ments was there any indication that they viewed the Act

as necessary to or supportive of the military function.

The Act and Its Operation. The Act contains two in-

dependent statutory prohibitions, neither of which was re-

quested or supported by the military. The first bans “the

sale or rental of sexually explicit material on [DoD] prop-

erty” (10 U.S.C. § 2489a(a)): the second forbids “Tal

member of the armed forces or a civilian officer or em-

ployee of the [DoD] acting in an official capacity” to

“provide for sale, remuneration, or rental sexually explicit

material to another person” (10 U.S.C. § 2489a(b)).

See Pet. App. 72a.

The Act defines affected DoD property to include com-

missaries, military exchanges, and ships’ stores. See 10

U.S.C. § 2489a(d)(2); Pet. App. 72a-73a. Sexually ex-

plicit material is defined as meaning only “an audio re-

cording, 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(d)(1). See Pet. App. 72a.

On the eve of the Act’s effective date, DoD issued a “Di-

rective-Type Memorandum” implementing the Act. It

defined “dominant theme” as “[a] theme of any material

that is superior in power, influence, and importance to

all other themes in the material combined,” and “lasciv-

ious” as “[l]ewd and intended or designed to elicit a

sexual response.” Pet. App. 76a.”

By its terms, the Act does not ban books, computer

Programs, or periodicals without visual depictions, regard-

7It is far from clear precisely what is banned. Unlike other laws,

the Act does not require lascivious exhibition of the genitals. It

merely requires lascivious descriptions or depictions of “nudity,”

and nudity is not defined. What it means to depict or describe

nudity in a lascivious manner is not self-evident. Apparently, a

photo or written description of a bare-breasted woman would be

sufficient to trigger the ban if the depiction or description was

deemed to be lewd and designed to elicit a sexual response.

Te eee ey ee ee

8

less of their content. Consequently, a book containing

lascivious descriptions (or depictions) of nudity is not

banned, but an audio recording of the very same book is

banned. Similarly, a periodical containing lascivious de-

scriptions of nudity, but no visual images, is not banned:

but the addition of visual depictions—even if not sexually

oriented—results in banning the same periodical. Although

“periodicals” can be banned, a one-time or special issue

publication is not banned, even if it contains nothing but

lascivious descriptions or depictions of nudity. Moreover,

a periodical containing lascivious depictions of nudity

will not be banned if those depictions are not the “dom-

inant theme” of the periodical. Thus, the Act does not.

by any means, ban all materials containing depictions or

descriptions of “nudity . . . in a lascivious way.” Finally,

the Act does not ban the possession or non-commercial

distribution on military property of lascivious descriptions

or depictions of nudity, or of any other non-obscene sex-

ually explicit material. Military personnel are permitted

to purchase those materials off-base and to bring them on

military property, or to obtain them through the mail.

The DoD Directive mandates the establishment of a

“Resale Activities Board of Review.” whose responsi-

bility entails reviewing material offered or to be offered

for sale or rental through exchanges and determining

whether the material is banned under the Act. Pet. App.

77a. Once it is determined that the Act bans certain ma-

terial, the material is withdrawn from all exchanges and

cannot be purchased absent subsequent permission by the

Board. Id. As applied to periodicals, this process will

necessarily result in banning future issues based on the

Board’s judgment regarding the content of earlier issues.

Proceedings Below. Before the Act became effective,

petitioners (publishers and distributors of materials at risk

of being banned, see Pet. App. 6a), brought a facial chal-

lenge, alleging that the Act violates the First and Fifth

Amendments. After petitioners filed a motion for prelimi-

9

nary injunction, the district court issued a temporary

restraining order enjoining enforcement of the Act until

the motion was resolved. After oral argument, the parties

agreed to treat the motion as one for permanent injunc-

tion. See id.

The district court permanently enjoined enforcement of

the Act, concluding that it violated both the First and

Fifth Amendments. Without reaching the issue whether

military exchanges are public or nonpublic fora, the

court concluded that the Act violates the First Amend-

ment on the ground that it bans protected speech because

the government “finds the ideas. messages or perspectives

expressed therein to be offensive, vulgar or indecent.”

Pet. App. 61a. The court rejected the government’s post-

hoc argument, edvanced during litigation and supported

by nothing in the statutory text or legislative history, that

Congress intended the Act to promote military “core

values” and to prevent public perception that the military

endorses the material sold. The court noted, first, that the

Act does not prohibit the possession or non-commercial

distribution of sexually explicit material on military prop-

erty, and there was no evidence that sale (versus posses-

sion) causes the alleged harm to the military’s core values.

Id. 60a. The court also observed that it was unreason-

able to equate the sale or rental of sexually explicit mate-

rial in exchanges with official “endorsement,” as exchanges

offer all kinds of harmful products that are popularly de-

rianded by military personnel, such as alcohol and _ to-

bacco. Id. Rather, the court concluded, “a plain reading

of the Act leads inevitably to the conclusion that it was

drafted in an attempt to limit the sale and rental of non-

obscene speech that Congress believed to be offensive and

to penalize those who publish it by preventing its sale to

military exchanges.” Jd.

The district court also held that the Act violates the

equal protection component of the Fifth Amendment.

The court concluded that “Tb]y treating one form of pub-

lishing ideas differently than : nother, the Act invites strict

10

scrutiny,” and found no evidence to suggest that this dis-

tinction was necessary to achieve the alleged goal of pro-

moting “core values.” Id. 63a-64a. Finally, the court held

the Act void for vagueness because the subjective term

“lascivious” invites ad hoc decisions that will inevitably

chill protected speech. Id. 64a-67a.

A divided panel of the Second Circuit reversed. The

majority concluded that the Act does not violate the

First Amendment because military exchanges are non-

public fora, the Act is not viewpoint-based, and the Act

is reasonable in light of the purpose of the forum. The

majority’s forum analysis was grounded in its conclusion

that military bases are created to prepare military person-

nel for combat, and “[t]he exchanges themselves are in

no way public,” id. 12a; further, the government is

merely acting as proprietor. Jd. The majority recognized

that, even in a nonpublic forum, the government cannot

restrict expressive activity based on the viewpoints ex-

pressed. 7d. 13a. But the majority ruled that the Act’s

ban on material containing nudity presented in a “lascivi-

ous manner” did not constitute viewpoint-based discrimina-

tion. 7d. 17a. Further, relying solely on the government’s

post-hoc justifications for law, and being “far more defer-

ential” than when reviewing regulations impinging the

First Amendment rights of civilians, id., the majority con-

cluded that the Act’s ban is reasonable because it “pro-

motes military honor, professionalism, proper decorum,

and military ‘core values,’” id. 20a, by “distancing the

military from a perceived endorsement of these materials.”

Id. 22a.

Subjecting the Act’s distinctions between different forms

of expression only to rational basis analysis, and citing no

evidence whatsoever, the majority opined that “Congress

could rationally have concluded that exchanges do not

trade extensively in books containing sexually explicit ma-

terial . . . [and] that visual forms of lascivious expression

are more prevalent, more likely to be noticed, or more

1]

Provocative than written materials.” Pet. App. 23a. The

majority also concluded that the Act afforded sufficient

clarity, because it is not a criminal statute and because

greater vagueness should be tolerated in the military con-

text. Id 24a-27a.

Judge Parker, in dissent, did not reach the forum issue

because he would have held that the Act constitutes im-

permissible viewpoint discrimination. By banning only

depictions of nudity that are “lascivious,” Judge Parker

concluded, “the government is necessarily attempting to

regulate a specific perspective”—namely, “that lust or Sex-

ual 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.” Id.

33a. Judge Parker explained, “[b]y restricting the sale

of depictions which some viewers find offensive and others

titillating, the government favors and protects the view-

point of those offended and restrict[s] the viewpoint of

those who are titillated.” Id. 34a. Judge Parker con-

cluded that the Act could not even satisfy intermediate

First Amendment scrutiny, refusing to accept the govern-

ment’s “unsubstantiated post-hoc rationalization” (id.

40a): not only is there “no evidence that th[e] ‘risk’ of

perceived official endorsement is real, it defies common

sense.” Id. 42a.

After denying a timely petition for rehearing and sug-

gestion for rehearing en banc, Pet. App. 689-6%a, the

court of appeals stayed issuance of its mandate. Jd. 70a-

72a.

’The majority offered no rationale for why an audio recording

of a book could be banned while the printed version was not; or

why lascivious descriptions of nudity in a periodical] with non-sexual

visual images are banned while the same periodical with no images

is not; or why a one-time publication, no matter how lascivious its

content, would not be banned.

12

REASONS FOR GRANTING THE PETITION

The Court’s review this Term of the decisions in Arkan-

sas Educ. Tel. Comm'n v. Forbes, No. 96-779, and Na-

tional Endowment for the Arts v. Finley, No. 97-371,

demonstrates the importance of the public forum and view-

point issues presented here. The decision below conflicts

with this Court’s precedents and with rulings of other

courts of appeals. It also reflects continuing confusion

regarding what constitutes a designated public forum, and

what constitutes viewpoint-based discrimination, and this

case presents a good vehicle for resolving that confusion.

Moreover, the majority’s decision is flatly wrong, and

will result in massive restriction of the First Amendment

rights of our country’s military personnel and their de-

pendents.

I. THE TEST APPLIED BY THE COURT OF AP-

PEALS FOR DETERMINING WHETHER GOVERN-

MENT PROPERTY IS A DESIGNATED PUBLIC

FORUM CONFLICTS WITH THIS COURT'S PRE-

CEDENTS AND WITH THE TEST APPLIED IN

OTHER COURTS OF APPEALS, AND IS FUNDA-

MENTALLY FLAWED.

Like so many important First Amendment cases, this

case arises in the context of an attempt by the government

to regulate sexually oriented speech. But this case is not

merely about such speech. It raises the fundamental ques-

tion whether the government may restrict military person-

nel’s access to speech of any content. The rule adopted

by the court of appeals allows such content-based bans.

The court found that any military property is a nonpublic

forum, unless the military has “abandoned” the property

to the general public. Thus, the court found, the military

could preclude service members’ access, through the ex-

change system, to constitutionally protected material, so

long as the restriction is merely reasonable and the gov-

ernment can articulate a legitimate concern. The court’s

conclusion—that Congress’ alleged desire not to have the

military be “associated” with a particular type of speech

is a legitimate ground for banning the sale of that speech

13

—is not limited to sexually oriented expression. Under

the court’s reasoning, the government would be free to

restrict service members’ access to, for example, informa-

tion regarding race, abortion, or AIDS.

The impact of the decision below will be wide-ranging

and severe. There are roughly 1.4 million active duty

members of the armed services.” They and their depend-

ents rely on exchanges to provide them with “convenient”

and inexpensive access to expressive materials. Indeed,

for the ten percent of active duty personnel stationed on

board ships or submarines, and the sixteen percent sta-

tioned abroad from Antarctica to Zimbabwe, exchanges

may represent the only source of English language ex-

pressive materials.”

This case thus fundamentally differs from those cases

holding that members of the general public typically can-

not gain access to military bases in order to distribute

leaflets or make speeches, e.g., Greer v. Spock, 424 U.S.

828 (1976), and those cases upholding the proscription

of speech that presents a clear danger to military loyalty,

discipline, or morale. See Brown v. Glines, 444 U.S. 348

(1980); Parker v. Levy, 417 U.S. 733 (1974). The

majority below upheld a ban on speech from areas specifi-

cally set aside for the dissemination of speech—exchange

newsstands and bookstores—simply because Congress was

offended by that speech. In upholding this ban, the ma-

jority ignored this Court’s precedent and lower court deci-

sions applying that precedent.

In a series of cases, this Court has set out the test for

determining whether government facilities are public fora.

Such facilities may be public fora by tradition (such as

public parks and streets) or by designation. The latter

category is at issue here. A “designated” public forum is

® See DoD, Active Duty Military Personnel Strengths by Regional

Area and by Country (309A), September 30, 1997 (prepared by:

Washington Headquarters Services Directorate for Information

Operations and Reports).

10 See DoD 309A Report, supra n.9; Bucha Aff. (J.A. 497).

14

property the “State has opened for use by the public as a

place for expressive activity.” Perry Educ. Ass'n v. Perry

Local Educ. Ass'n, 460 U.S. 37, 45 (1983). Examples

of designated public fora are university meeting facilities,

Widmar v. Vincent, 454 U.S. 263 (1981); school board

meetings, City of Madison Joint Sch. Dist. v. Wisconsin

Employment Relations Comm’n, 429 U.S. 167 (1976);

municipal theaters, Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546 (1975); and a candidates’ debate

for a particular Congressional seat, sponsored by and

broadcast on public television, Forbes v. Arkansas Educ.

Tel. Comm'n, 93 F.3d 497 (8th Cir. 1996), cert. granted,

Ji7 S. Ct. 1243 (1997). Both “traditional” and “des-

ignated” public fora are subject to stringent First Amend-

ment constraints. In either type of forum, the government

may not impose “content-based” restrictions on expressive

activity unless it can demonstrate a “compelling state in-

terest . . . that is narrowly drawn [to achieve that end].”

Perry Educ. Ass'n, 460 U.S. at 45.

In determining whether a designated public forum has

been created, courts must first define the relevant prop-

erty. In doing so, the focus must be on “the access sought

by the speaker.” Cornelius v. NAACP Legal Defense &

Educ. Fund, Inc., 473 U.S. 788, 801 (1985). Thus, if

a speaker sought general access to the entirety of particu-

lar government property, the inquiry would focus on the

property as a whole. If, however, a speaker seeks access

to only a portion of the property, the inquiry must focus

on that portion. /d. Courts must then consider whether

government iniended to open that portion of its property

to expressive activities. See id. at 802; Perry, 460 U.S.

at 45-46. The government’s assertions regarding its intent

are not, however, accepted blindly. Instead, courts look

first “to the policy and practice of the government” with

respect to the underlying property, and then “examine[]

the nature of the property and its compatibility with ex-

pressive activity.” Cornelius, 473 U.S. at 802. This in-

quiry is required to guard “against the dangers of post-hoc

policy formulation. ... The government may not ‘create’

—

15

a policy to implement its newly-discovered desire to sup-

press a particular message.” Air Line Pilots Ass’n Int'l v.

Department of Aviation of the City of Chicago, 45 F.3d

1144, 1153 (7th Cir. 1995).

The court below generally acknowledged these tests,

but did not apply them. In this case, speakers and

listeners sought to distribute and receive expressive mate-

rial only through exchanges. Thus, the court was required

to examine exchanges alone—those portions of military

property that offer access to magazines, newspapers, and

books. See Flower v. United States, 407 U.S. 197 (1972)

(road running through military base is a public forum,

although the base itself is not); Tele-Communications of

Key West, Inc. v. United States, 757 F.2d 1330 (D.C.

Cir. 1985) (cable television access to military bases may

be designated public fora, even though bases themselves

are not); Rigdon v. Perry, 962 F. Supp. 150 (D.D.C.

1997) (chapels on military bases are public fora, even

though base itself is not)." Ignoring those rulings of this

Court and other courts, the court below focused not on

exchanges but on the military's practices with regard to

entire bases, and relied on cases holding that bases them-

selves are not public fora. Pet. App. 10a (citing Greer

v. Spock, supra; United States v. Albertini, 472 U.S. 675

(1985)). It emphasized that it is “the business of a mili-

tary installation . . . to train soldiers, not provide a public

forum.” Jd. 10a (internal quotation omitted). This con-

clusion is simply beside the point.

The court of appeals also rested its decision in large

part on the misapprehension that military bases (or por-

tions thereof) cannot be designated public fora unless

they have been “abandoned.” Pet. App. 13a. No other

‘! See also Forbes, 93 F.3d at 503 (where plaintiff sought access

to candidates’ debate, relevant forum is such debate, not television

channel’s entire programming): Airline Pilots Ass’n, 45 F.3d at

1151-1152 (where plaintiff sought access to advertising display

cases in airline terminal, relevant forum was display cases, not

entire terminal).

16

court has held that portions of a military base cannot be

designated public fora unless the government has “aban-

doned” all claims to exclude civilians. Although aban-

donment is one way to establish that a public forum has

been created, see Flower v. United States, supra, there

is no “special test for military bases. . . . In all cases,

whether military bases are involved or not, the test is

simply whether the government intended to open up the

facility... .” Brown v. Palmer, 944 F.2d 732, 739 (10th

Cir. 1991); see also Rigdon, supra (finding that chapels

on military bases are designated public fora, even though

the government had not abandoned all claims to exclude

civilians from those chapels).

The court’s “abandonment” test led it to rely, errone-

ously, on the fact that “exchanges themselves are in no

way public.” Pet. App. 12a. Instead, the court empha-

sized, only “military personnel, their dependents, orphans,

surviving spouses, and certain other affiliated personnel”

have access to exchanges. Jd. These limitations, the court

found, serve as an “indicator that the government did not

intend to dedicate exchanges to expression and discourse,”

because “a limited audience would necessarily hinder,

rather than further, the opportunities for communication

by speakers such as [petitioners].” Jd.

That analysis is flatly at odds with this Court’s holdings

that a designated public forum need not be opened to the

public at large, or for all expressive activity, but may be

created for use by a particular group, or for a particular

purpose. See, e.g. Widmar v. Vincent, supra (student

groups); City of Madison Joint Sch. Dist., supra (school

board business).’* In Widmar, as here, government facili-

ties were not opened for use by the public at large. None-

12 Some courts have classified public fora designated for specific

uses as “limited public fora,” a subcategory of designated public

fora. See, e.g., Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 6&8

(2d Cir. 1991) (school auditorium is “at least” a limited public

forum) ; Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992)

(public library is a limited public forum for the purpose of access

to information).

17

theless, this Court held that “[t]hrough its policy of ac-

commodating their meetings, the University has created

a forum,” albeit a forum designated for use by students

only. Widmar, 454 U.S. at 268. The court below failed

to apply this principle. Had it done so, it would have

been forced to conclude that through its policy of open-

ing exchanges for expressive activities, the government

created a public forum, albeit a forum designated for use

by military personnel and their dependents only.

The court also relied on the irrelevant fact that because

of physical space limitations, not all speakers who wish

to speak through exchanges can be accommodated. Pet.

App. 12a. But as this Court’s precedents make clear, the

use of neutral criteria to decide who can speak is per-

fectly consistent with the concept of a designated public

forum. The question is not whether the government prop-

erty is open to all speakers, but whether it has been

opened to any speakers who Satisfy neutral criteria. See

Widmer, supra; Madison Joint Sch. Dist., supra. Here,

the evidence submitted by the government itself demon-

Strated that military exchanges have historically been open

to all lawful speech that satisfies neutral criteria such as

customer demand and available shelf space. See, e.g.,

AAFES Special Retail Programs EOP 40-11, 10-2(a)

(November, 1994) (J.A. 164) (directing that decisions

be made based on customer demand, shelf space, and

Price); see also S.A, 5 (DoD memo, supra n.6, noting

same). In holding there was no intent to create a desig-

nated public forum because not all books and magazines

are carried in every exchange, the court below ignored this

evidence, and failed to follow Widmar and its progeny.

Finally, the court ignored clear precedent when it held

that “because military exchanges are ‘engaged in com-

merce,’ their operation is generally inconsistent with the

creation of a public forum.” Pet. App. 12a. As this

Court has made clear, even when the government is act-

ing as proprietor. the “restrictions that the government

seeks to place on the use of its property” must be analyzed

using a “forum based” approach. See International Soc’y

18

for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672,

678 (1992); see also United States v. Kokinda, 497 U.S.

720, 726 (1990) (noting that, since its decision in

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974),

which employed a “proprietor” test, “the Court has

adopted a forum analysis as a means of determining when

the Government’s interest in limiting the use of its prop-

erty to its intended purpose outweighs the interest of

those wishing to use the property for other purposes”

(citation omitted) ).*

Because the court of appeals misapplied this Court’s

test for determining whether government property is a

designated public forum, and thus erroneously concluded

that military exchanges are not, it did not subject the Act

to the strict scrutiny designated public fora require. See

Perry, 460 U.S. at 46. Had it done so, the Act would

have been struck down; the government did not even

attempt to argue that the content-based ban satisfies strict

scrutiny.

Ironically, finding that exchanges are not designated

public fora creates the “endorsement” problem the gov-

ernment purports to be concerned about. The Act’s con-

tent-based ban of some but not all sexually explicit

material will necessarily give rise to the inference that the

government does endorse the sexually explicit material it

has not banned. By contrast, if exchanges are properly

recognized to be designated public fora, the government

could not be perceived as endorsing any given material,

because speech in such a forum is public speech, not gov-

ernment speech. DoD could easily post notices reflecting

the position announced in its regulations that it “does not

13In any event, although the military may be acting as a pro-

prietor, the military did not adopt the ban at issue in this ease.

Congress did, and it did so not in its role as proprietor, but in its

role as lawmaker—dictating what is appropriate for military stores

to carry based on the content, and purported viewpoint, of the

material sold. See International Soc’y for Krishna Consciousness,

Inc. v. Lee, 505 U.S. 672, 678 (1992) (distinguishing between the

government acting as proprietor and as lawmaker).

19

have the right to remove adult-oriented reading material

from sale unless the materials have been judged to be

obscene by a state or federal court.” AAFES Special Re-

tail Programs EOP, at 10-2(e€)(1) (J.A. 165); see also

Pet. App. 42a (Parker, J., dissenting) (DoD could post

“non-endorsement” signs). If exchanges are held to be

designated public fora, military consumers will recognize

that all constitutionally protected information for which

there is demand is made available in exchanges, regard-

less of whether the military approves of any given pub-

lication’s content.

II. THE TEST APPLIED BY THE COURT OF AP-

PEALS FOR DETERMINING WHETHER A REGU-

LATION OF SPEECH IS VIEWPOINT-BASED CON-

FLICTS WITH THIS COURT'S PRECEDENTS

AND WITH THE TEST APPLIED IN OTHER

COURTS OF APPEALS, AND IS FUNDAMEN-

TALLY FLAWED.

This case requires review for a second reason. By hold-

ing that the ban on petitioners’ speech was not viewpoint-

based, and was therefore permissible, the majority ignored

this Court’s precedents and created irreconcilable tension

with the correct decisions of several other Circuits. Even

in a nonpublic forum the government may not permit

Some speech and exclude other speech of the same type

based on viewpoint. See Cornelius, 473 U.S. at 811: see

also Perry, 460 U.S. at 46. In the Act, Congress discrim-

inated based on viewpoint in two ways: it deliberately

sought to advance its own viewpoint by suppressing what

it perceived as petitioners’ contrary viewpoint; and it sup-

pressed petitioners’ actual viewpoint on a range of subject

matter including sexuality, gender roles, and morality.

Animus against petitioners and similarly situated speak-

ers motivated the Act. Congress did not ban all depic-

tions of nudity; rather, it banned only certain forms of

expression that “depict[] or describe[] nudity . . . in a

lascivious way.” 10 U.S.C. § 2489a(d)(1). The Act per-

mits any depiction of nudity that is deemed chaste, artistic,

or scientific, and therefore not “demeaning.” This distinc-

20

tion reflects Congress’ clear intent, borne out by the legis-

lative history, to impose its own view of morality on serv-

ice members and their dependents.

Every justification offered for the Act in Congress and

in this litigation entails viewpoint discrimination. In a

floor speech, Rep. Dornan, the principal sponsor, said his

bill should be enacted to promote “decent” speech, be-

cause “[pJornography is a frontal, direct, vicious specific

assault upon women . . . cheapening [them] down like

slavery to a product, meat on a rack.” 142 Cong. Rec.

H8822, H8824 (July 30, 1996). The bill’s sporsors

openly sought to suppress what they saw as the unde-

sirable viewpoints of periodical publishers that include

nude images in their publications, expressly naming Pent-

house and Playboy. Id. The sponsors characterized mag-

azines that publish nude photographs as “garbage,” id.

(Rep. Dornan), and “demeaning to women,” Gugliotta

& Grahm, supra n.5, at 3 (quoting Rep. Bartlett during

markup of bill). The majority simply dismissed these

expressions of congressional intent. See Pet. App. 19a

n.13.

In defending the Act, government counsel advanced,

and the majority approved. two different but equally view-

point-based rationales—that the Act was necessary to

“promote[] military honor, professionalism, proper de-

corum, and military ‘core values,’” id. 20a, and “to dis-

associat[e] the military from [petitioners’] speech,” id.

15a n.10, in order to avoid “sending a message that mili-

tary approves of or endorses” that speech. Jd. 19a. Ac-

cordingly, the court approved a scheme whereby a nude

image is proscribable only if it expresses a viewpoint that,

in Congress’ eyes, offends military “core values” or threat-

ens to taint the military by association.

Even apart from the absence of any evidence that the

military thought the Act was necessary or helpful to pro-

mote “core values,” a regulation designed to promote core

values is necessarily viewpoint-based, and thus unconsti-

tutional. “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can pre-

21

scribe what shall be orthodox in . . . matters of opin-

ion... .” West Virginia Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943). The government may have some

latitude to promote values to military personnel, a lesser

corollary of the latitude public schools have to “transmit

community values” to their students. Cf. Board of Educ.

v. Pico, 457 U.S. 853, 869 (1982) (plurality opinion) .*

Neither institution, however, may promote its preferred

values by squelching viewpoints it deems inconsistent with

those values. As Pico noted, if respondents “intended by

their removal decision to deny . . . access to ideas with

which [respondents] disagreed, and if this intent was the

decisive factor in [respondents’] decision, then {respond-

ents] have exercised their discretion in violation of the

Constitution.” Jd. at 871 (footnote omitted): see also

Barnette, 319 U.S. at 637; cf. Texas v. Johnson, 49]

U.S. 397, 418 (1989) (“To say that the government has

an interest in encouraging proper treatment of the flag...

is not to say that it may criminally punish a person for

burning a flag as a means of political protest.”). Banning

descriptions and depictions perceived as “demeaning” to

women, or as inconsistent with “core values,” plainly

violates this prohibition. See American Booksellers Ass'n,

Inc. v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985),

affd mem., 475 U.S. 1001 (1986) (striking down ordi-

nance banning sexually oriented material depicting women

in “subordinate” manner); American Council of the Blind

v. Boorstin, 644 F. Supp. 811 (D.D.C. 1986) (Library

‘4 The majority below relied on Pico, 457 U.S. at 871. and on

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986), for

its fallacious conclusion that “a distinction based on lasciviousness

is viewpoint neutral.” Pet. App. 16a-17a. That reliance was mis-

placed. Pico presented no issue of viewpoint discrimination on

grounds of “lasciviousness,” and the speaker in Fraser appears not

to have argued viewpoint discrimination at all. In addition, both

Pico and Fraser involved primary public schoolchildren, a popula-

tion that presents very different problems and involves very differ-

ent governmental interests than do the soldiers and sailors at issue

here. See Fraser, 478 U.S. at 682-83 (distinguishing adults’ ex-

pressive rights from children’s lesser rights).

22

of Congress’ ban of braille edition of Playboy is uncon-

stitutional viewpoint-based discrimination); cf. R.A.V. y.

City of St. Paul, 505 U.S. 377, 389 (1992) (government

could not “prohibit only that commercial advertising that

depicts men in a demeaning fashion”) .™

The majority failed even to examine the government's

manufactured post-hoc “core values” and “endorsement”

rationales in assessing whether the Act discriminated

based on viewpoint. This Court has made clear that re-

viewing courts must critically examine the justifications

governments offer for arguably viewpoint-based restric-

tions on speech. Indeed, the asserted justifications for

challenged laws frequently have been cited as the best

evidence of their discriminatory purposes. See R.A.V.,

505 U.S. at 393: Texas v. Johnson, 491 U.S. at 411:

Kingsley Int'l Pictures Corp. v. Regents of the Univ. of

N.Y., 360 U.S. 684, 688-89 (1959). As in those cases,

the justifications offered in support of the Act confirm

the impermissible discriminatory purpose behind it.

The narrow category of speakers penalized by the Act

also confirms Congress’ discriminatory animus. The Act

carefully targets a specific segment of the print medium:

only “a periodical with visual depictions” is barred from ex-

changes. 10 U.S.C. § 2489a(d)(1)."° The effect of the

‘*The majority below misread R.A.V. In R.A.V., this Court

stated in dicta that, within a class of unprotected speech, rovern-

ment could discriminate based on the same characteristics that

caused the speech to be unprotected. See 505 U.S. at 388. Because

this Court’s example of that principle was discrimination based on

“prurience” within the class of obscenity, see id., the majority below

concluded that, even as to protected speech, “prurience and patent

offensiveness are... permissible grounds on which to discriminate.”

Pet. App. 16a. The Court’s extension of the R.A.V. dictum to pro-

tected speech cannot withstand scrutiny.

‘8 For example, Madonna’s book Sex, which contains numerous

nude images and would undoubtedly be deemed “lascivious” if

printed in a periodical, can be sold at exchanges, as can Henry

Miller’s Tropic of Cancer.

Dae ae AL A Ag eae PED a eas 2 ey) Nh

23

Act’s precisely crafted proscription is to single out the

small class of publishers who sell “periodical” publications

which contain nude images. In fact, the Act’s sponsors

singled out some of those publications by name. See supra

p. 20.

This Court has inferred discriminatory animus from

similar attacks on narrow segments of the print media.

In Grosjean v. American Press Co., 297 U.S. 233 (1936),

Louisiana applied a special tax to publications that ac-

cepted advertising and had a weekly circulation of more

than 20,000 copies, thereby burdening only a small group

of publishers. Jd. at 240-241. In striking down the tax,

this Court emphasized that the narrow range of speakers

affected strongly implied a discriminatory intent. The tax

was “measured alone by the extent of the circulation of

the publication in which the advertisements are carried,

with the plain purpose of penalizing the publishers and

curtailing the circulation of a selected group of news-

papers.” Jd. at 251 (emphasis added). Minneapolis

Star & Tribune Co. y. Minnesota Comm’r of Revenue,

460 U.S. 575 (1983), held that discriminatory taxation

of a small segment of the print media violated the First

Amendment even absent discriminatory animus, see id.

at 591-92 (see also Arkansas Writers’ Project, Inc. vy. Rag-

land, 481 U.S. 221, 228-29 (1987) ), but it left no doubt

that disparate treatment burdening a selected group of

publishers is strong evidence of discriminatory intent.

In this case, the narrow range of publishers affected by

the Act reflects Congress’ discriminatory animus. Congress

would have served more effectively any of the constitution-

ally infirm justifications offered for the Act—banning ma-

terial that “demeans” women, disassociating the military

from potentially “offensive” material, or promoting mili-

tary “core values”—by casting the Act’s net to encompass

printed matter beyond periodicals and content beyond

“lascivious” depictions of “nudity.” The Act’s narrow

compass confirms what the government’s justifications

for the Act establish: Congress’ purpose in Passing the

24

Act was to suppress ideas it did not like that were likely

to be expressed by speakers it did noi iike. See Arkansas

Writers’ Project, 481 U.S. at 229-30.

Besides intentionally discriminating against a viewpoint

Congress imputed to petitioners, the Act effectively dis-

criminates against petitioners’ actual viewpoint: the per-

spective on sexuality, gender roles, and morality expressed

by petitioners and other speakers blacklisted by the Act.

The court below characterized the Act as merely discrim-

inating based on “content,” not “viewpoint.” But two

recent decisions of this Court, and numerous appellate

cases following those decisions, preclude that analysis.

Twice in recent Terms, this Court has held that the

test for “viewpoint-based” discrimination must be broadly

construed, in order to prevent the government from im-

posing a viewpoint-based regulation by mischaracterizing

it as content-based. In Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384 (1993), this Court

overturned a school district ordinance that opened school

property for numerous uses but not for religious purposes.

The Court held that the district’s refusal to allow screen-

ing of a religious film about family values amounted to a

denial “solely because the film dealt with the subject from

a religious standpoint.” Jd. at 394. This Court expanded

on Lamb’s Chapel in Rosenberger v. Rector and Visitors

of the Univ. of Va., 515 U.S. 819 (1995). which involved

a university’s refusal to subsidize a Christian student pub-

lication called Wide Awake with funds available to other

student publications. The University argued that, because

it refused to subsidize any viewpoint on the “subject” of

religion, its policy was permissible content discrimination.

This Court rejected that argument. While acknowledging

that “[rJeligion may be a vast area of inquiry,” the Court

explained that religion also provides “a specific premise,

a perspective, a stand-point from which a variety of sub-

jects may be discussed and considered.” Id. at 831. The

Court concluded that Wide Awake’s “prohibited perspec-

tive, not the general subject matter, resulted in” the dis-

crimination. Id.; see also Johnson, 491 U.S. at 413 & n.9.

said

ASR Ra SRN DN BIS YRS Baie

25

Petitioners here, like the speakers in Lamb’s Chapel and

Rosenberger, express a particular viewpoint on a variety

of subjects, including human sexuality, gender roles, and

morality. Magazines such as Penthouse deal with sexual-

ity as healthy and enjoyable, and portray women and men

as attractive individuals who enjoy their sexuality, They ad-

vocate and reflect a tolerant attitude toward sex and sexual-

ity. The subjects on which petitioners express their perspec-

tive, no less than the “variety of subjects” at issue in Rosen-

berger, are categories within which government may not

discriminate based on viewpoint. The Act, however, sin-

gles out petitioners’ viewpoint for suppression while per-

mitting contrary viewpoints on the same topics. Under the

Act, service members and their families will remain free to

purchase magazines like Ms., which criticize notions of

sexual freedom as exploitative of women: like Good House-

keeping, which perpetuate traditional gender roles; and

like the National Review, which advocate a socially and

morally conservative agenda, including a more restrictive

view of the appropriate degree of sexual freedom for men

and women. All of those publications, quite properly,

will remain available in exchange bookstores and news-

stands if enough service members and _ their families

want to buy them. But Penthouse and other materials

that depict or describe nudity in the course of expressing

less traditional viewpoints on sexuality, gender roles, and

morality will be banned.

The opinion below, by defining petitioners’ perspective

on a range of topics as mere “content,” clears the way for

almost unlimited approval of viewpoint-based censorship

in the guise of “content selection.” Lamb’s Chapel and

Rosenberger require exactly the opposite approach—a

broad understanding of “[t]he prohibited perspective, [as

opposed to] the general subject matter,” Rosenberger,

515 U.S. at 831—as a means to prevent viewpoint dis-

crimination. The majority’s failure to follow this Court’s

decisions will deny the First Amendment's expressive lib-

erty to the very people charged with defending it.

eT ee

26

The court of appeals’ acquiescence in the Act’s view-

point discrimination conflicts sharply with recent decisions

of at least six other Circuits. The Ninth Circuit con-

fronted, and this Court is considering a claim very sim-

ilar to petitioners’ in Finley v. National Endowment for

the Arts, 100 F.3d 671 (9th Cir. 1996), cert. granted,

118 S. Ct. 554 (1997). In Finley, several artists chal-

lenged a statute that required the NEA, in weighing

grant applications, to “tak[e] into consideration general

standards of decency and respect for the diverse beliefs

and values of the American public.” 20 U.S.C. § 954

(d)(1); see 100 F.3d at 674-75. The appellate court

held the case indistinguishable from Rosenberger:

Here, too, it is the treatment of a subject, not the

subject itself, that is disfavored. Two depictions of

the same subject matter—an American flag, for ex-

ample—could be treated differently if NEA believed

one depiction symbolized an “indecent” perspective

or demonstrated disrespect for “the diverse beliefs

and values of the American public,” and the other

did not.

100 F.3d at 683. Thus, the Finley court understood

Rosenberger to require treating “indecency” and attitudes

toward “beliefs and values” as imputed viewpoints, rather

than mere subject matter. If the Ninth Circuit was cor-

rect, then that dictate of Rosenberger also must encom-

pass expressive material “the dominant theme of which

depicts or describes nudity . . . in a lascivious way,” 10

U.S.C. § 2489a(d)(1), or does not take a “decent line.”

Supra, p. 6.

Indeed, two Circuits have applied this Court’s recent

decisions to bar discrimination between clashing view-

points about sexuality and morality. In Gay Lesbian Bi-

sexual Alliance v. Pryor, 110 F.3d 1543 (11th Cir. 1997)

(“GLBA”), a state forbade state universities from fund-

ing any organization that “fosters or promotes a lifestyle

or actions prohibited by the sodomy and sexual miscon-

duct laws.” Ala. Code § 16-1-28; see GLBA, 110 F.3d

at 1545. A student organization, denied funding under

oe a oe

27

the statute, challenged it, and the Eleventh Circuit held

that the statute impermissibly discriminated against the

organization’s viewpoint on the subject of sodomy and

sexual misconduct laws. Finding Rosenberger “directly

on point,” GLBA, 110 F.3d at 1550, the court explained

that the University

does not prohibit discussion of the sodomy or sexual

misconduct laws in general. Rather... . [t]he statute

discriminates against one particular viewpoint be-

cause state funding of groups which foster or pro-

mote compliance with the sodomy or sexual miscon-

duct laws remains permissible. This is blatant view-

point discrimination.

Id. at 1549. Similarly, in AIDS Action Comm. v. MBTA,

42 F.3d 1, 10-12 (1st Cir. 1994), the First Circuit struck

down a policy that prohibited condom advertisements in

subway cars while permitting R-rated film advertisements

that “represent the conventional exploitation of women’s

bodies for commercial advertising,” id. at 12, because the

policy created “at least an appearance of viewpoint dis-

crimination.” Jd. at 12. Both GLBA and AIDS Action

found viewpoint discrimination in enactments that forbade

unpopular, arguably indecent expression about sexuality

and morality. Faced with an indistinguishable enactment

in this case, the court below found only content discrimi-

nation,

Courts of appeals have applied Rosenberger and Lamb's

Chapel in both nonreligious and religious contexts to dis-

tinguish viewpoint-based discrimination from content-

based distinctions, in ways that cannot be squared with

the decision below. See, e.g., Burnham vy. lanni, 119 F.3d

668, 676 (8th Cir. 1997) (en banc) (holding that Uni-

versity official’s removal from a history department dis-

play of two photographs of professors with historic

weapons and uniforms violated prohibition on viewpoint-

based discrimination because the photos “expressed the

plaintiffs’ view that the study of history necessarily in-

volves a study of military history, including the use of

military weapons,” and was not merely content-based);

28

Grossbaum vy. Indianapolis-Marion County Bldg. Auth.,

63 F.3d 581, 584 (7th Cir. 1995), cert. denied, 117

S.Ct. 1822 (1997) (holding that municipal prohibition

on the plaintiffs’ display of a menorah in a public build-

ing during Chanukah discriminated against the plaintiffs’

“viewpoint” on the “subject” of “the holiday season’);

Summum vy. Callaghan, 130 F.3d 906 (10th Cir. 1997)

(reinstating a viewpoint discrimination claim arising from

a county’s barring a religious monolith from a public lawn

that already contained a similar privately erected struc-

ture); Church on the Rock y. City of Albuquerque, 84

F.3d 1273, 1278-79 (10th Cir.) (striking down as view-

point-discriminatory a restriction on religious discussions

and activities at city-run senior centers), cert. denied, 117

S.Ct. 360 (1996).

Ill. THE COURT OF APPEALS’ ANALYSIS IN CON-

CLUDING THAT THE ACT IS REASONABLE IN

LIGHT OF THE PURPOSE OF EXCHANGES CON-

FLICTS WITH THE ANALYSIS EMPLOYED BY

OTHER COURTS OF APPEALS AND IS FUNDA-

MENTALLY FLAWED.

Even if the majority were correct. that military ex-

changes are nonpublic fora, and that the Act is not view-

point-based, its decision nonetheless conflicts with the rea-

soning of other Circuits and is clearly wrong, warranting

this Court’s review because of the importance of the

First Amendment rights at stake. Content-based, non-

viewpoint-based regulation of speech in a nonpublic forum

is permissible only if it is “reasonable in light of the pur-

pose served by the forum.” Cornelius, 473 U.S. at 806."

Contrary to the majority’s approach, which simply de-

ferred to the government's post-hoc arguments and sup-

7 The Act is patently unreasonable in light of the purposes of

military exchanges. Exchanges are expressly designed to duplicate

stores available to the general public and to be the “primary source”

of expressive materials and other goods military personnel request

for their comfort and convenience, at reduced prices. Supra p,. 2-4.

The Act, however, makes it less convenient and more expensive to

purchase certain constitutionaily protected materials that service

members have demonstrated they want to purchase.

ro as rege

Lee Se

ne ee anes ee ee

Ba let ee RS St ae

29

positions, other Circuits have recognized that this test

“requires more than does the traditional rational basis

test.” Tucker v. State of Cal. Dept. of Educ., 97 F.3d

1204, 1215 (9th Cir. 1996); Searcey v. Harris, 888 F.2d

1314, 1321-22 (11th Cir. 1989) (requiring evidentiary

support for reasonableness of government ban); see also

Cornelius, 473 U.S, at 810-811 ( discussing evidence sup-

porting reasonableness of conclusions),

The majority concluded that the Act’s ban “is a ‘reason-

able’ means of promoting the government's legitimate inter-

est in protecting the military’s image and its core values.”

Pet. App. 21a-22a. To begin, the “irrationality of this

unique and puzzling regulatory framework ensures that

the . . . ban will fail to achieve that end.” Rubin v.

Coors Brewing Co., 514 U.S. 476, 115 S.Ct. 1585, 1592

(1995). In Coors, this Court considered the constitu-

tionality of a federal ban on alcohol content on beer

labels. The Court observed that the fact that the govern-

ment permits such information in beer advertising, and

requires it for wine and spirits labels, necessarily means

that the ban will not further a purported interest in avoid-

ing customers’ purchasing beverages with the highest alco-

hol content. Moreover, the Court concluded, “these excep-

tions and inconsistencies bring into question the purpose

of the... ban.” 115 S. Ct. at 1593. The failure to ex-

tend the prohibition “makes no rational sense if the

government's true aim is [as stated].” /d. at 1592. So

too here. The failure to ban all lascivious depictions and

descriptions of nudity will actually create (not eliminate)

an appearance of endorsement. See supra p. 18. If Con-

gress’ true aim were to promote “core values” and prevent

the military’s association with the materials banned, why

would it ban only a narrow subset of sexually oriented

materials and allow the sale of significant amounts of such

material? And why would Congress permit military per-

sorinel to cbtain the banned materials from their com-

manders so Jong as they were not charged for it; would

not such activity “lead a service member to conclude

that such materials were sanctioned by superior officers”

30

(Pet. App. 19a)? And why, if such materials really un-

dermined military professionalism, honor, and decency,

would Congress permit military personnel to possess the

same materials obtained off-base or through the mail?

Even if it were clear that avoiding “endorsement” was

Congress’ goal, it is totally illogical to conclude, as did

the majority, that “official endorsement [is] inherent in

the military’s resale of the proscribed materials.” Pet.

App. 28a (emphasis added). As both the district court

and Judge Parker noted, exchanges sell all kinds of prod-

ucts, including cigarettes, alcohol, and condoms, yet no

argument could be made that the government “officially

endorses” smoking, drinking or non-procreative sex. See

id. 60a; 42a (Parker, J., dissenting). Cf. Tucker, 97

F.3d at 1215 (“{R]easonable persons are not likely to

consider all of the information posted on bulletin boards

or walls in government buildings to be government-

sponsored or endorsed.”). Because decisions regarding

what expressive materials are sold rest in large part on

local demand, the military personnel themselves, not the

exchanges, are “supporting” the products sold.* Pet. App.

at 42a (Parker, J., dissenting).

Finally, Congress’ “ ‘failure to select . . . simple avail-

able alternative[s] suggests’ that the ban it has enacted is

not reasonable.” Tucker, 97 F.3d at 1216 (quoting

Multimedia Pub. v. Greenville-Spartanburg Airport Dist.,

991 F.2d 154, 159 (4th Cir. 1993)). One such alterna-

tive, suggested by Judge Parker—erecting non-endorse-

ment signs—the majority refused to consider. See Pet.

App. 42a. In that respect, as well, the majority’s analysis

of the reasonableness of the prohibition was inconsistent

with the analysis employed by other Circuits.

CONCLUSION

The Petition for a writ of certiorari should be granted.

18 DoD already takes steps to regulate the “adult” materials avail-

able through exchanges, by prohibiting their sale or rental to

minors, placing them out of the reach of children, requiring covers,

and prohibiting perusing. (J.A. 164-165).

a

é

a

Ries

Respectfully submitted,

BRUCE J. ENNIS, JR.*

ANN M. KAPPLER

JODIE L. KELLEY

GREGORY P. MAGARIAN

JENNER & BLOCK

601 Thirteenth Street, N.W.

Twelfth Floor

Washington, D.C. 20005

(202) 639-6000

Attorneys for Petitioners

* Counsel of Record