These regulations define "lascivious" to mean "lewd and intended or designed to elicit a sexual response." Id.
The Act only bans the sale or rental of "sexually explicit" material on military property. It does not restrict the possession of such material on military property. Additionally, military personnel are free to buy "sexually explicit" material off military property or to order it through the mail. Military personnel may also share the same material with their colleagues so long as they do not sell or rent it.
Plaintiff General Media Communications publishes various periodicals including Penthouse. The other plaintiffs are various trade associations whose members are engaged in the wholesale and retail distribution, sale and manufacture of periodicals, books, sound recordings and home videos throughout the nation. Plaintiffs allege that the Act infringes their rights to free speech and equal protection of the laws, in violation of the First and Fifth Amendments, respectively. In addition, they allege that the Act is unconstitutionally vague in violation of the Fifth Amendment.
Penthouse is the third most popular magazine sold by Army and Air Force Exchanges, with sales of approximately 19,000 copies per month.
See Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction ("Plaintiffs' Memo") at 4. The January 1997 issue of Penthouse is 222 pages. The magazine contains a number of articles by prominent authors such as Ben Stein and Alan Dershowitz. More than 97 pages include pictures of women, many of whom are totally nude. A substantial number of these pictures reveal female genitalia and women engaged in sexual contact with other women. There can be no dispute that these depictions of women are designed to elicit a sexual response. It also is fair to say that many of these pictures offend commonly shared ideals of decency because of their explicit nature.
On October 18, 1996, plaintiffs filed an Amended Complaint seeking injunctive and declaratory relief from the Act pursuant to 28 U.S.C. §§ 1331 and 2201. On December 20, 1996, this Court issued a Temporary Restraining Order enjoining defendants from enforcing the Act until decision of plaintiffs' motion. Oral argument was heard on December 31, 1996. On January 13, 1997, the parties agreed to treat plaintiffs' motion for a preliminary injunction as one for a permanent injunction.
A. Legal Standard for Granting Permanent Injunctive Relief
To succeed in an action for permanent injunctive relief, plaintiffs must establish (1) success on the merits of their claims; (2) irreparable harm absent injunctive relief; (3) that the threatened injury to plaintiffs outweighs any harm the injunction may cause to defendants; and (4) that the injunction is not adverse to the public interest. See E.E.O.C. v. Local 40, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers, 76 F.3d 76, 80 (2d Cir. 1996) (citing Roberts v. Madigan, 702 F. Supp. 1505, 1514 (D. Colo. 1989), aff'd, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218, 120 L. Ed. 2d 896, 112 S. Ct. 3025 (1992)).
Provided that plaintiffs succeed on the merits of their claims, plaintiffs easily meet the remaining three elements of this test. The "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). See also Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996). Generally, "when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable harm is necessary." 11A Charles A. Wright, Arthur R. Miller and Mary Kane, Federal Practice and Procedure § 2948.1 at 161 (2d ed. 1995). The defendants cannot claim they will be harmed by an injunction if the Act is unconstitutional, or that the enforcement of an unconstitutional statute best serves the public interest. Thus, if plaintiffs succeed on the merits of their claims, they are entitled to permanent injunctive relief.
B. The First Amendment
It is well established that the government may restrict obscene speech and expressive conduct. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992); Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973).
The government concedes, however, that the terms of the Act extend beyond obscene material. See Transcript of Oral Argument ("Tr.") at 33. This case, therefore, presents the question of whether Congress may restrict the sale or rental of nonobscene speech in a military exchange on the ground that it is "lascivious", which is defined by the implementing regulations to mean "lewd and intended or designed to elicit a sexual response."
1. Visual Images are "Speech" for First Amendment Purposes
Visual images are among the myriad forms of expressive conduct shielded by the First Amendment. See Bery, 97 F.3d at 695 ("As the Supreme Court has reminded us, visual images are 'a primitive but effective way of communicating ideas . . . a short cut from mind to mind.' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943). . . . One cannot look at Winslow Homer's paintings on the Civil War without seeing, in his depictions of the boredom and hardship of the individual soldier, expressions of anti-war sentiments, the idea that war is not heroic."). Visual images are not stripped of First Amendment protection because they express sexual messages and ideas. See Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment"). And although the government may proscribe obscenity, even this kind of speech is not entirely invisible to the First Amendment. See R.A.V., 505 U.S. at 383 (citing Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957)). Obscene materials, for example, may not be restricted on the basis of particularly unpopular viewpoints, ideas or perspectives. See 505 U.S. at 388.
2. Speech May Not Be Restricted Simply Because It Offends
"If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (citing, inter alia, Hustler Magazine v. Falwell, 485 U.S. 46, 55-56, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 72, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983); Carey v. Brown, 447 U.S. 455, 462-463, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980); F.C.C. v. Pacifica Found., 438 U.S. 726, 745-746, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 16-17, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Grayned v. City of Rockford, 408 U.S. 104, 115, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972); Bachellar v. Maryland, 397 U.S. 564, 567, 25 L. Ed. 2d 570, 90 S. Ct. 1312 (1970)). Restrictions on nonobscene speech based on offensiveness alone are repugnant to the First Amendment for at least two fundamental reasons. First, there is no constitutionally acceptable way to distinguish offensive speech from inoffensive speech: "One man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U.S. 15, 25, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971) (offensive speech such as a jacket bearing the words "Fuck the Draft" is protected by the First Amendment). Second, banning nonobscene offensive speech restricts protected expression based on the messages it conveys. "We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views." Id. at 26.
In Erznoznik v. City of Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975), the Supreme Court held that visual depictions of nudity at a drive-in may not be banned on the ground that they might offend passersby. Erznoznik involved a city ordinance that criminalized the exhibition of nonobscene visual depictions of "human male or female bare buttocks, human female bare breasts, or human bare pubic areas" if such depictions were "visible from any public street or public place." Id. at 207. In ruling that the ordinance violated the First Amendment, the Supreme Court stated:
When the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.