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Author/Copyright holder: Robert L. Vaessen
Originally written: 26 January 1999
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How the 104th Congress (1995-1996) disrespectfully, and underhandingly, dishonored the men and women of the
United States military, by forcing legislated morality upon them and further restricting their first amendment rights.

How the 104th Congress (1995-1996) disrespectfully, and underhandingly, dishonored the men and women of the United States military, by forcing legislated morality upon them and further restricting their first amendment rights


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 legislation. 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/material. That certainly sounds like censorship/and or social engineering to me.)

(Are the members of congress more moral than the members of the U.S. military? Are they more moral than you? Did they pass some sort of 'Morality Test' before being elected as representatives?)

Let's get a little more specific. The bill's summary (as introduced) read as follows:

"Military Honor and Decency Act of 1996 - Prohibits:
(1) the Secretary of Defense from permitting the sale or rental of sexually explicit material on property under Department of Defense (DOD) jurisdiction; and
(2) a member of the armed forces or a DOD employee acting in an official capacity from providing such material to another person."

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 the military's image of honor, professionalism and proper decorum. To foster character and moral principle in the armed forces.

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 represent an assault on military families who use the stores on military bases regularly. They claim the availability of such magazines undermines the well-being of [military] families and can also compromise [America's] defense readiness. The proponents of the legislation pointed out that; 'It won't ban anything. Soldiers may have a Constitutional right to read, view, or buy this material. The government has no obligation under the Constitution to sell it. Mail and cable service subscriptions, and off-base purchases by individual service personnel are not affected.'

(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?)

(Something strikes me as odd about this law. If the sponsors of this bill truly wanted to foster character and moral principle in the armed forces, by removing these offensive materials. Then they couldn't possibly achieve that goal, without totally forbidding the purchase, possession, use, or sale of these materials by military personnel. After all, we can still buy these materials off base. It seems apparently clear to me, that the sponsors/supporters of this law truly think that our (military members) first amendment rights should be curtailed in order to preserve 'defense readiness'.)

(Let's talk about buying these materials off base for a minute. It may be relatively feasible, and easy to do in the U.S. But there are a large number of U.S. military members stationed overseas, where the purchase of such materials is not exactly that simple. First of all, the materials are likely to be in a foreign language. Secondly, such materials are often more graphic than those available in the U.S. or, completely unavailable. Sometimes these materials (when purchased off base overseas) are considered illegal in the U.S. The U.S. May have laws which prohibit U.S. publishers from using models under the age of 18. But there are countries where such laws do not exist, and where child pornography is prevalent. Not being able to read the magazine, and unaware of these realities, any U.S. service member could easily find themselves in possession of illegal materials. Taking them on base could very well constitute a criminal offense.)

(Let's talk about mail order/postal subscriptions for a minute. It may be relatively easy to subscribe (or purchase through mail order) to such periodicals/materials in the U.S. But there are a large number of U.S. military members stationed overseas, and most of these countries have postal regulations which prohibit or severely restrict the delivery of such materials through the mail. Even when the materials themselves are readily available for purchase in the countries with such prohibitions. The regulations regarding postal delivery of such materials are extremely vague, usually amounting to no more than two or three words. Such vagary makes delivery/receipt of such materials a totally unpredictable, and legally troubling proposition.)

(I strongly criticize this law. I believe it is a direct violation of my first amendment rights. I have a legal right to view these materials. Why have my rights been taken away? What threat do I pose to defense readiness? This is ludicrous. Here I am risking my life, protecting the constitutional rights of all Americans, yet my right to view adult materials has been stripped away. Does this sound right to you?)

(Who exactly will determine which materials will be considered to be 'Sexually Explicit'? Will this law end up removing books like 'The Joy of Sex' from military bookshelves? What about medical texts?)

We're one day closer to an end to the disgraceful and indefensible practice of the Defense Department distributing smut on military bases, said Congressman Roscoe Bartlett (R-6-MD).

(What exactly is disgraceful about the constitutional right to buy or sell legal materials to consenting adults?)

After the Tailhook and Aberdeen sex scandals, is there any question that the military needs policies that support the highest standards of behavior? asked Mr. Bartlett. Our government cannot possibly maintain a professional command climate that includes respect for our women serving in the enlisted ranks and as officers while simultaneously promoting the distribution of this kind of material. This garbage may be protected under the First Amendment, but the government has no obligation to sell it.

(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?)

(Mr. Bartlett also suggests that the legal sales of adult materials somehow prevents the government from maintaining a professional command climate. Ridiculous; My professional respect for my fellow military members has absolutely nothing to do with their, or my, personal beliefs or choice of legally available reading materials. If Mr. Bartlett's contentions are correct, then such materials should be completely banned (From Military members) in the interests of National Defense.)

(The statement that the Department of Defense 'Distributes' or 'Promotes the Distribution' of adult materials is very misleading. Mr. Bartlett makes it sound like the Defense Department actively distributes adult materials, or in the very least, that they somehow sponsor the magazines being sold. Totally untrue. The military exchanges and commissaries sell many items. None of which are officially sponsored or promoted by the Department of Defense. DoD does not sponsor the sales of any specific branded items.)

(Mr. Bartlett even admits that these materials are protected under the first amendment. He has sponsored legislation which has denied me my constitutional rights. He then goes on to say that the government has no obligation to sell it? Does the government have an obligation to sell Cosmopolitan, GQ, Newsweek, the Bible? (Which version?) what about the Koran? Wait a minute.. If the government were sponsoring or condoning the sale of specific religious materials; wouldn't that be a violation of the principle of separation of church and state. That's the first amendment again folks. The truth is that our government does not sponsor or promote the sales of any specific branded items. AAFES (And other military commercial outlets) has done a good job of responding to the customers desires regarding which items to offer.)

(Are the members of congress more moral than the members of the U.S. military? Are they more moral than you? Did they pass some sort of morality test before being elected as representatives?)

Americans don't believe Bob Guccione has the right to line his pockets with their hard-earned money by forcing the government to sell his magazines to our men and women in uniform on military bases, concluded Bartlett.

(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.

President Bill Clinton signed the Bartlett Amendment into law on September 23, 1996 (By approving the NDAA of 1996). The Secretary of Defense would have been required to implement the amendment 90 days after it was signed into law. The only way this legislation could have been defeated was by a presidential veto of the Defense Authorization Act.

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).

On January 22, 1997, Judge Shira A. Scheindlin ruled that the Military Honor and Decency Act was unconstitutional. The Justice Department appealed the decision to the Second Circuit Court of Appeals and requested expedited review of the case. Expedited review was granted on February 27, 1997.

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 is a 'reasonable' means of promoting the government's legitimate interest in protecting the military's image and its core values."

Judge Fred Parker issued a strong dissent, stating: When First Amendment protection bows to the military's desire to suppress certain ideas without a clear and strong reason, desire to protect our liberties with a strong military authority may end up eroding our liberty to speak freely and to be tolerated in doing so.

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: The key error made by the 2nd Circuit was when it said that there was no viewpoint discrimination because we are only dealing with sexually explicit material. There is a viewpoint implicit in sexually explicit materials.

There was a clear viewpoint on the part of the military that sexually explicit materials are bad. The very motive of the lawmakers who drafted this law was that the material is smut, he said.

(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.)

"an audio recording, a film or video recording, or a periodical with visual depections, produced in an medium, the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs in a lascivious way."

Bartlett Response: In response to the Lawsuit Ruling, Rep. Bartlett stated; Judge Scheindlin's decision is so clearly wrong. Her opinion noted, but ignored all of the relevant arguments. She ignored precedents that make it clear that maintaining our national security is a top priority that can override other Constitutional rights, not to mention precedents that the government has no obligation to subsidize otherwise constitutionally-protected activities. It's ludicrous to believe the military can maintain good order and discipline including respect for our women in uniform while simultaneously promoting the distribution of smut. This garbage clearly demeans women. It makes sexual harassment in the military and incidents such as Tailhook and allegations at Aberdeen more likely. Military bases are not convenience stores and soldiers give up many civil rights when they sign up to serve. Americans understand that even if Judge Scheindlin does not. Americans vehemently disagree and resent Bob Guccione's contention that he's entitled to even a dime of their hard-earned tax money.

(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?)

(He also states that the government has no obligation to subsidize otherwise constitutionally-protected activities. Wait a minute, isn't that what our military is all about? Our government spends billions of dollars subsidizing the protection of our constitutional rights/activities. It's entire existence is a government sponsored assurance of the right to practice constitutionally protected activities (i.e. Life liberty and the pursuit of happiness). If our government didn't subsidize those rights (through the establishment and maintenance of our military), they would have been taken away long ago.)

(He then goes on to insist that the military cannot maintain good order and discipline without prohibiting the distribution of these materials by the military. Once again, I must ask how the cessation of distribution on military bases alone would achieve the goal implied in these types of statements. He continues to refer to these constitutionally protected materials as 'Smut' and 'Garbage' indicating a clearly negative personal viewpoint.)

(His statements that "This garbage clearly demeans women. It makes sexual harassment in the military and incidents such as Tailhook and allegations at Aberdeen more likely." is vague and without basis. There is no established relationship whatsoever between incidents of sexual harassment and the possession of adult materials. Although much of this material may be/is demeaning to women. That does not make it illegal or threatening to National security.)

(As far as sexual harassment and conducts of behavior go; I personally believe that the U.S. military has set, and maintains, a very high standard. All military members are educated, inculcated, and reminded on a near daily basis of the importance, and necessity of equal and respectful treatment for all persons. I've been through much more equal opportunity, human dignity, and sexual harassment training than 90% of the civilian sector of our society. And that training has not been without results. I observe military members, and their personal interactions on a daily basis. Similar observations of the civilian segment of our society has clearly shown me the differences in our standards of conduct. The legal constitutionally protected possession of adult materials in no way threatens military readiness or our ability to treat others in a respectful manner.)

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.

A sampling of magazines and videos reviewed by the 'Resale Activies Board' for sale on military bases
Approved Banned Under Review
Magazines Videos Magazines
Celebrity Skin Blonde and Beyond Curves
Penthouse Girls Night In Playboy's Hot Shots 2007
Playboy Import Skin Playboy's Vixens
Playboy's College Girls Sex Symbols  
Playboy's Lingerie    

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 their 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.

(Like all those who serve in the U.S. military, I gave up many of my constitutional rights when I raised my hand, and swore to uphold the constitution. Now someone has taken away another one of those rights. If this law is permitted to remain in effect without challenge, the next thing to go just might be my right to disagree with it... and that ain't no Joke!)

NOTE: When I originally wrote my dissenting view, I was a military member on active duty. I have since retired from the military (Retired with full honors, effective 1 Jan 2005), and maintain my point of view regarding the 'Military Honor and Decency Act of 1996'.

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.


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