Pmg International Division, L.L.C. v. Donald H. Rumsfeld, in His Official Capacity as the Secretary of Defense Department of Defense

Three magazine distributors and three individuals with military affiliations (collec tively “PMG”) filed suit against the Secretary of Defense and the Department of Defense (collectively “Defendants”) to enjoin the enforcement of the Military Honor and Decency Act (the “Act”), which prohibits the sale or rental of sexually explicit material on Department of Defense property. PMG raised First and Fifth Amendment claims, arguing that the Act is unconstitutionally vague, restricts protected speech and, as enforced, has a disparate impact on minorities and women. We must decide whether the Act’s ban on sexually explicit materials is government speech. Because we believe it is not, we must decide whether to agree with the Second Circuit, which, in considering claims virtually identical to those raised here, applied First Amendment forum analysis to conclude that military exchanges are nonpublic fora and that the Act is a viewpoint-neutral, reasonable regulation of speech.

BACKGROUND

The Act became effective in December of 1996 and provides in relevant part:

The Department of Defense (“DOD”) has implemented the Act through DOD Instruction 4105.70 and DOD Directive 1330.9.…