Author/Copyright holder: Robert L. Vaessen
Origins: On April 24 1996 Congressman Christopher H. Smith (R-NJ) introduced/sponsored a bill onto the floor of the House of Representative. HR-3300, also known as (Short title as introduced) Military Honor and Decency act of 1996 (Which I prefer to call; the Military Dis-Honor and Indecent act of 1996 was immediately co-sponsored by two other representatives. Rep. Roscoe G. Bartlett (R-MD), and Rep. Robert K. Dornan (R-CA). Eventually a total of 16 co-conspirators would come to be co-sponsors of this legislative sin. The bills stated title/purpose (Official title as introduced) was:
"A bill to amend title 10, United States Code, to prohibit the Department of Defense from selling, renting, or otherwise providing sexually explicit material to any individual."
(In my opinion, the title alone tells everyone that it is the intention of this bill, to control the morals of one segment of our population, by restricting the sale and or distribution of certain types of media. Kind of sounds like censorship/and or social engineering to me.)
Let's get a little more specific. The bills summary (as introduced) read as follows:
"Military Honor and Decency Act of 1996 - Prohibits:
No debate: The bill was not acted on when introduced on the floor of the house of Representatives. No call for votes was made. The sponsors knew that this legislation would never pass an open vote on the floor. Instead, the bill was referred to the House Committee on National Security. National Security? What in the * @ $ % does the sale of Penthouse to PFC Smith have to do with National Security? Nothing at all. That's what. The bills sponsors knew what they were doing. This action was necessary to get the bill attached to some other defense related legislation at a future point.
Previous attempt: The Reagan administration rejected a similar proposal several years ago, when a ban on the sale of Playboy, Penthouse, and Playgirl, among other magazines, was under discussion. "We believe that attempts to prohibit the sale of magazines in this category that are currently available through the military exchange services would raise serious constitutional and administrative problems," said Defense Department General Counsel H. Lawrence Garrett III at the time.
Purpose?: The supposed purpose; at least according to the bills sponsors; would be to end taxpayer-subsidized distribution (sale or rental) of sexually explicit material at Department of Defense facilities such as PX's, commissaries and ship stores. According to proponents (Government arguments during congressional and legal debate) of the law, the act is necessary to protect
Pro/Con: The ban's sponsors, Reps. Christopher Smith (R-NJ), Roscoe Bartlett (R-MD) and Robert Dornan (R-CA), have argued that such magazines
(Nice choice of inflamatory words. 'Assault', 'Undermines', 'Well-being', 'compromise defense readiness'. If these magazines are an assault on military families, then why aren't they considered an assault on the values of all families? Exactly how would these magazines compromise defense readiness?)
(What exactly is disgraceful about the constitutional right to buy or sell legal materials to consenting adults?)
(Policies that support the highest standards of behavior? There it is in all it's glory folks. The truth of the matter. Mr. Bartlett thinks that members of the military are somehow morally inferior or corrupt. The truth is that each person forms, and is ultimately responsible for, his or her own morals. No one else can or should legislate my morals. Who exactly does he think he is?)
(There he goes again.. The government does not sponsor or promote the sales of any specific branded items. Oh, but we (Americans) do believe that Bob Guccione has the right to line his pockets with our hard-earned money. That's what the free market, and our economic model is based on. As far as I know, Mr. Guccione never paid anyone for the right to sell his magazines in military exchanges. Nor did he force anyone to make his magazines available. The military exchanges were selling these materials because the military members were buying them. Sex sells, and that's the honest truth. Americans should have the right to freely purchase such magazines. Apparently Mr. Bartlett only has a problem with military members buying these materials on a military base? So it's morally o.k. If I purchase these materials off base? What's the moral difference?)
Here's what happened after the bill was introduced on the house floor, and referred to the House Committee on National Security.
Implementation: The National Security Committee approved it by voice vote on May 1, 1996. It was then passed without debate or challenge (By this time it was part of the NDAA of 1996. The NDAA of 1996 was the legislation which passed) by the full House of Representatives on May 15, 1996. It was included in the Conference Report which was subsequently approved by the House on August 1, 1996 and by the Senate on September 10, 1996.
First Challenge: Soon after the act passed into law Bob Guccione, publisher of Penthouse, filed a law suit challenging the constitutionality of the Bartlett Amendment in the United States District Court of the Southern District of New York (Manhattan).
Law upheld!: In June of 1998, the Supreme Court upheld the 1996 Military Honor and Decency Act (by a 2-1 vote) by refusing to review an appeal of a lower court ruling (General Media Comm. v. Cohen, November 96, 2nd Circuit Court of Appeals). The ruling was made in part because of "the special circumstances of the military environment, in which the appearance of professionalism and proper conduct is critical." On July 1, Frank Rush, acting assistant secretary of defense for force management, signed DoD Instruction 4105.70, "Sale or Rental of Sexually Explicit Material on DoD Property."
The 2nd Circuit court determined that military bases are not public forums, in which even regulations of expression based on content are considered constitutional as long as they are reasonable and do not discriminate based on viewpoint. The appeals court concluded that the law
Judge Fred Parker issued a strong dissent, stating:
The 2nd Circuit's opinion reversed the ruling of federal district court Judge Shira Scheindlin, who ruled the law unconstitutional in January 1997.
Government's arguments: The government's reply brief in the appeals case argued that the law does not violate the First Amendment on five grounds: The First Amendment does not compel governmental proprietors to traffic in lascivious merchandise; Exchanges are Nonpublic Fora under the First Amendment; the sales policy is reasonable; the law does not suppress any Point of View; the DOD implementing regulations do not constitute A Prior Restraint. The reply brief further argued that the law does not violate the Fifth Amendment's Equal Protection guarantee and is not void for vagueness.
A First Amendment attorney John T. Mitchell, who practices in Washington D.C., stated in an interview:
(According to previous rulings, materials can be banned from military bases regardless of First Amendment concerns, provided the regulations on such speech are reasonable, and do not discriminate based on viewpoint. So, If the sponsors of this legislation, had a prior viewpoint that these constitutionally protected materials were 'Smut', then that would mean that they could not be banned based on that 'Viewpoint'. Seems to me that was their main reason for banning these materials.)
The law requires DoD to remove all sexually explicit materials sold or rented by congressionally funded commercial outlets on military bases.
(Does this mean that non-funded (NAF/Non-appropriated funds) activities could legally offer these materials for sale or rent? The non-profit MWR (Morale Welfare and Recreation) activities are not funded by congress, and are present at nearly all U.S. military bases. Would any commander dare allow MWR to sell these materials?
(The instruction even manages to define sexually explicit.)
Bartlett Response: In response to the Lawsuit Ruling, Rep. Bartlett stated;
(Mr. Bartlett really should let the government attorneys talk for him. His statements only serve to illustrate the loopholes, inconsistencies, and poor legal grounds of the Military Honor and Decency act. He still maintains that the sales of these materials on military bases is a National Security matter of such importance that it should override Constitutional rights. Unbelievable; If my (any military members) access to these materials is such a threat to National Security, then why are military members permitted to possess or purchase these materials at all?)
The Smut committee: The DoD instruction created an eight-member Resale Activities Board. The board first met Aug 13th of 1998. It was chaired by Steve Sellman, director of DoD accession policy. The other members were all civilian representatives from the military services and the military exchange commands.
(All civilians huh? Well that makes sense. After all, us military folks just don't have the ability to judge what's moral and what's not. Is it moral to shoot that person aiming a rifle at me? Wait a minute, let me get this straight. Members of the U.S. Military can be relied on to defend the rights of other americans (with their lives if necessary), but cannot trust themselves to make moral decisions regarding suitability of reading materials? Who's representing the members of the U.S. military in all this?)
Current status/Updates: The DoD instruction implemented the law, and the government has since removed the 'offending materials'.
In 2002, an appeal of the Act was argued, submitted, and heard in the United States District Court of Northern California. The outcome of that appeal upheld the Act, ruling that the military may restrict the sales of these materials within the confines of the exchange system (retail activities under it's purview/control). The U.S. 9th Circuit Court of Appeals affirmed that decision.
Effective 15 Dec, 2006. The rule implementing the Act (DoD instruction 4105.70) was amended. The amended rule establishes responsibilities for monitoring compliance, establishes a review board to determine whether a material offered for sale or rental is sexually explicit as consistent with the definition in 10 U.S.C. 2489a, and delineates review board procedures. This updated rule includes administrative changes and one new policy allowing materials which have been determined by the Board to be sexually explicit to be submitted for reconsideration every 5 years.
June 2007: After reciving a tip, and conducting some invesitgation, it has come to my attention that the military exchanges are now permitting the sales of Penthouse and Playgirl. Begining in May of 2007, military exchanges will begin to offer the following magazines for sale: Penthouse, Playgirl, and Ultra (after a relaunch of the magazine). Unfortunately, this does not signal a reversal of the 'Military Honor and Decency Act of 1996'. Apparently, it is the decision of the 'Resale Activities Board'. Presumably, Penthouse is no longer considered 'Sexually Explicit'? How they make their decisions is (and will likely remain) a complete mystery.
July 2007: Even more bad news. It now appears that the military has constituted another board. Extending the mandate established under the 'Military Honor and Decency Act of 1996'. From the response that I received (email received from a military exchange general manager), it is clear that the military exchanges are now forming local panels similar to that used for "Adult Reading Material". These new boards are used to review "Men's General Titles". This extends the additionally restrictive practice that I've seen in most exchanges. Not only do you have to be 18 to purchase "Adult Reading Material", you must also be 18 in order to purchase "Men's General Titles", as they are placed in the same part of the display as the "Adult Reading Material". The general populace doesn't need to be 18 to purchase 'Maxim' (and other titles), but apparently patrons of a military exchange do.
Nov 2007: A reporter/journalist (Peter Eisler) writing an article for USA Today called me (on the phone) and asked for my input/views regarding the article he was submitting for publication. Apparently, "Dozens of religious and anti-pornography groups have complained to Congress and Defense Secretary Robert Gates that a pentagon board set up to review magazines and films is allowing sales of material that congress intended to ban." This reaction comes after the boards recent review of certain materials (see July 2007 above), and I see it as no surprise that these 'religious and anti-pornography groups' are once again pushing their agenda on our political leaders. They believe (despite constitutional protections) that they should be able to dictate what is and is not acceptable reading/viewing material for our military members. This isn't about what the 'BX' sells. This is a battle over legislated morality. These groups feel that everyone should comply with their ideals, and they've found a group of people that they can impose that will upon - the Military. By convincing a few influential members of congress, they can get bills passed (attached to funding bills) which basically bypass normal legislative review. The result? More rights taken away from our military members. See the complete USA today article for details.
May 2008: U.S. Rep. Paul Broun, R-Ga. (and 15 others), has introduced legislation that would close a loophole in the current law (The Military Honor and Decency act of 1996) that allows the sale of some sexually explicit material on military bases by lowering the threshold required to deem material "sexually explicit." So basically - Nudity is now illegal - Or at least it will be for military members. The new 'Military Honor and Decency Act' of 2008 (H.R. 5821) would close the 'Loophole' which permits the depiction of 'nudity'. So no more nudity at all! Even a single bare breast would be enough to label the material as 'Sexually Explicit'. Apparently, according to Rep. Broun, from his Web site: "Allowing the sale of pornography [not further defined] on military bases has harmed military men and women by escalating the number of violent, sexual crimes, feeding a base addiction, eroding the family as the primary building block of society, and denigrating the moral standing of our troops both here and abroad." - I don't believe it, and you shouldn't either! Banning 'Nudity'? Come on get real. What's next? Requiring soldiers to sleep, bath, shower, while wearing clothes? Military parents shouldn't be allowed to see there spouses, selves, or children unclothed. Because nudity leads to violent sexual crimes!? This guy, these people, are off their rockers. This bill basically defines nudity as 'pornography'. I feel sorry for the military members who continue to have their rights taken away by a vocal minority. Military members have no recourse in this matter. They don't get a vote on this bill. Neither do the voters, it's going to get attached to a spending bill, just like the last 'Military Honor and Decency Act'. It'll be passed with no discussion or separate vote.
In summary:This law was passed without representation or debate, by high minded individuals, more intent on capturing headlines and votes, than they were with protecting the rights of military members, or the U.S. constitution. It's passage was assured by tacking it onto the National Defense Authorization act of 1996 (See the Kyl Amendments).
While I would agree that the military has a right to regulate those items sold by retail outlets under it's control, I disagree with the implementation of any such regulation or enforcement of that right. Let the military member, the market forces of supply and demand be the deciding factor with regard to the sale/distribution of these materials.
Those who have put forth this regulation, claim to stand on higher moral ground, claim to be protecting military members and our nations security. When pressed on the matter, they cannot prove, justify or explain their reasoning or logic. The implementation of this act is a slap in the face to all military members, and an affront to the first amendment. Hopefully someone with some political will and moral courage, will see the truth and fight to have this law/act rescinded.
References/Sources: Listed below are a few of the various research references and sources that I consulted (and or used) when writing this article. Learn more about the Military and Honor Decency act of 1996. Both Pro and Con positions are presented.
If you have any comments, concerns, or questions regarding this page(s), or this law in general, please feel free to write me.