Penthouse Versus Pentagon

Penthouse Publisher Bob Guccione has met Larry Flynt only once, but Flynt, the notoriously lewd publisher of Hustler made a lasting impression."He is a slob, a vulgarian," Guccione says urbanely.Make no mistake, he wants you to know: Bob Guccione is no Larry Flynt. Flynt, he says, gives pornographers a bad name. Yet as The People vs. Larry Flynt rips through the box offices, Guccione finds himself in a situation that both he and Flynt have known: he is fighting the federal government over the distribution of pornography.At the center of the case is the recently passed Military Honor and Decency Act, which bans sexually explicit material, such as Penthouse and Hustler, from newsstands on military bases. Proponents argue that the government has no business selling pornography; Penthouse, the most popular monthly magazine at US military facilities worldwide, claims the law violates its First Amendment right to distribute constitutionally protected material. Now the courts have to sort it out.If you hadn't heard of the law, which was passed last September, you're not alone. With the support of the Christian Coalition, the Family Research Council, and the Traditional Values Coalition, and with the sponsorship of three right-wing Republicans -- former representative Robert Dornan of California, Representative Christopher Smith of New Jersey, and Representative Roscoe Bartlett of Maryland -- the measure was quietly attached to the annual defense-spending bill. There were no hearings, no debates, no committee reports on the anti-porn rider. It passed Congress and, on September 23, President Clinton -- clearly in no position to defend the skin trade -- signed the defense bill into law.The law has not been applied yet, but the theory, at least, is simple. It loosely defines sexually explicit material as that which "depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way." A military censorship board is charged with determining which of the videos and 219 publications sold today on US military bases meet that criteria. (Soldiers would still be free to purchase pornography off the base.)Right now, the bill's proponents say, the government subsidizes the sale of publications, including pornographic ones, at its commissaries, ship stores, and exchanges. Military newsstands don't charge sales tax, and offer a 10 percent discount on everything they sell.Whether "subsidizing" is the proper characterization is debatable. Magazine wholesalers generally sell periodicals to the military at 20 percent to 25 percent off the suggested retail price. The military installations, in turn, sell the magazines at an across-the-board 10 percent discount. The difference works out to a profit of 12 to 19 percent, which is then rolled into future orders. No tax dollars are used."Far from being a burden on the taxpayer, this is a most profitable venture for the military," Guccione says.That may be so, concedes Robert Maginnis, a retired Army lieutenant colonel and the director of the Family Research Council's Military Readiness Project, but there is still no sales tax. And, he protests, the facilities in which these materials are sold, as well as the military planes used to transport them overseas, are financed with taxpayer money. Furthermore, military installations, he and other proponents insist, are not required to stock any product at all, be it Dial soap or Hustler magazine.The argument that will perhaps capture the courts' attention most -- particularly in light of the unfolding sexual-misconduct scandal at Aberdeen Proving Ground in Maryland -- is the proponents' contention that even the softest pornography is detrimental to soldier morale and readiness."It is an issue of maintaining a work environment that does not promote what is arguably considered to be material that would contribute to sexual harassment," says Roscoe Bartlett's press secretary, Lisa Wright.But the government, says Guccione, will have to contend with the fact that Penthouse has been sold at military facilities since its inception in 1969. Can the Defense Department offer sound evidence that those sales have ever led to sexual misconduct? Maginnis says he is unaware of any incidents of sexual misconduct on military facilities that have been tied to viewing pornography, including the recent cases at Aberdeen Proving Ground.Part of the standard criteria for military purchases over the years has been whether a product impairs "good order, discipline and combat readiness." The question the new measure raises is, will the sale of these products on military bases compromise national security?Guccione says the answer is clearly no."How do you put a man in uniform," he asks, "teach him to kill, expose him to images of war and all sorts of inhumanity, and in the same breath tell him that .Ê.Ê. exposing him to soft-porn pictures, like the ones in Penthouse, is bad for him emotionally?"It's a question the military might have a difficult time answering, particularly considering its long tradition of provocative pin-ups in the barracks and cheesecake paintings on its World War II bomber planes.Maginnis cites a 1986 report issued by the US Attorney General's Commission on Pornography stating that more than 40 percent of rapists and child molesters "implicated pornography" in their crimes.Maginnis acknowledges, however, that the report is not conclusive."There is no cause and effect in sociology," he says. "I'm not going to sit here and say Ôcause and effect' -- just that there is a high correlation, and that's the best science can give us now."The AG commission's report has been refuted by numerous academic studies that show no significant correlation between viewing pornography and sexual misconduct.Richard Fallon, a professor at Harvard Law School who specializes in constitutional and First Amendment law, has read the 1986 report thoroughly. He says that although the report cited evidence suggesting that viewing violent sexual pornography might lead to "adverse behavioral effects," it drew no conclusions."It was just a report, not a call for legislation," Fallon says.The military Honor and Decency Act was scheduled to go into effect on December 22. But in October, Guccione and a group of trade associations representing distributors, wholesalers, and publishers were granted a temporary restraining order by a judge of the US District Court for the Southern District of New York. The restraining order prevented the government from enforcing the law, at least in that federal jurisdiction.On December 31, Guccione's General Media Communications, parent company of Penthouse, asked the same federal judge, Shira Scheindlin, for a preliminary injunction against the Department of Defense to further prevent it from implementing the law. It is unclear when she will rule on that motion.Guccione's suit argues that the law is unconstitutional on a number of fronts. First, because the law arbitrarily prohibits "sexually explicit material" in certain media (such as magazines), but not in others (such as books), the suit claims that it violates the equal-protection clause of the Constitution. Secondly, the suit contends that the law's wording is too vague and does not adequately define "sexually explicit" material.The bulk of the suit, however, hinges on the First Amendment right to free speech. Guccione claims that the law violates his right to disseminate, and others' right to receive, constitutionally protected vehicles of expression.The courts have ruled that there is a difference between legal pornography and illegal "obscenity." Distributing or possessing obscene material, such as child pornography, is a felony and is not protected by the First Amendment. Penthouse and Hustler, on the other hand, are legal and fall under the umbrella of First Amendment protections.Furthermore, Guccione's suit claims that if enacted, the law would be tantamount to censorship (or, in legal terminology, to "prior restraint"). By barring the sale of the magazine, it effectively punishes him, his distributors, and wholesalers before the fact, the suit argues.The case may well come down to the legal standard used by the courts when applying the law to military cases. In the civilian sector, the government needs to provide a powerful legal justification for curtailing free speech; in the military, the threshold of proof is lower. The government, as Harvard's Fallon puts it, must show only a "moderately rational" justification for restricting freedom of expression in a military setting."The military gets an enormous amount of deference when they're making provisions for the armed forces," says Fallon.In the late 1970s, for instance, a Jewish soldier filed suit against the government, claiming that his First Amendment rights were being violated when the military refused to allow him to wear a yarmulke. The US Supreme Court sided with the military, saying that it could insist on uniformed dress as a matter of order and discipline -- and consequently a matter of combat readiness.That two-tier standard may make the government's defense in this case easier, but it doesn't mean the government won't have to bolster its assertions with a substantive legal argument. Fallon speculates that at the very least, the government will have to provide affidavits from military experts contending that the sale of legal pornographic material is not in the best interest of maintaining a strong national defense.Whether that suffices will be up to Judge Scheindlin, known as a strict interpreter of the Constitution. (She recently struck down a law permitting random stops of cab drivers by police.) In the meantime, Maginnis is irked by the Pentagon's passivity in the face of the court's October restraining order, which prevents the government from implementing the military-porn law. The Department of Defense, he asserts, is not obliged to apply the ruling universally; a US District Court judge's ruling is binding only in his or her jurisdiction."The smut is likely to remain on the shelves for now, because the Pentagon is more afraid of pornographers than of Congress," he charges. "Congress has declared that selling pornography is bad for readiness, and the military should obey."Of course, the Pentagon may well be taking the prudent course of action: waiting to see what the court says before implementing a law that will likely cost taxpayers more in set-up costs for a new censorship bureaucracy than it ever cost them to sell porn mags to soldiers.For his part, Guccione sees Maginnis's frustration with the legal process as a sign more of the Christian Right's religious zeal than of its patriotic passion."It is another example of the church imposing itself on public and political practice," he says. "The fact that a lot of people in society may find these materials offensive is not a legally permissible rationale for suppressing them. That is censorship. And in a democracy, there is no more of an abhorrent word than censorship."

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