Ban On Px Sales Of Sex Items Upheld -- Court Says Military Has Right To Set Standards Of Moral Conduct

WASHINGTON - Ruling that the military has a broad right to control the message it sends the troops about morals, a federal appeals court has upheld a law that bans the sale or rental of sexually explicit magazines, films and tapes at military bases.

In a 2-1 decision that appears headed for the Supreme Court, the 2nd U.S. Circuit Court of Appeals based in New York City revived a year-old law that a federal judge had struck down early this year.

By throwing out a constitutional challenge to the law, the appeals court ruled that the armed forces could begin enforcing restrictions on sales or rentals of sexually explicit material.

The majority said it accepted the Pentagon's argument that the military's interest in "the highest form of personal and professional conduct . . . could be undermined if military personnel believed that military commanders approved the sale of the materials at exchanges."

Congress passed the law, and the Pentagon issued rules to implement it, the appeals court said, to "end the military's involvement in the sale of sexually explicit materials." The military, it added, was entitled to promote "military honor, professionalism, proper decorum, and core values," and the 1996 law was a reasonable way to achieve that goal.

Michael Bamberger, a lawyer for a group of publishers that challenged the law, said he would either ask the full appeals court to review the 2-1 decision by a three-judge panel of the court or

appeal directly to the Supreme Court.

"This is a troubling decision" that "treats lightly the First Amendment rights of military personnel," Bamberger said. The appeals-court majority, the lawyer argued, "really stretched to reach" its decision to uphold the law.

In upholding the law, the appeals-court majority said the measure did not discriminate against any particular point of view - even the view that it is a positive value to portray people in such a way as to stir a sexual response. The law simply declares the kinds of sexual images that cannot be sold on base in the military's own stores, it said.

The law restricts military stores from selling or renting erotic publications, films or tapes. But it does not bar erotic material in book form. The appeals court said that distinction did not qualify as unconstitutional discrimination against magazines, films or tapes.

The court noted that the law is not a total ban on such items in the military: It does not prohibit service members from possessing sexually explicit items, from sharing them with others, or from buying or renting them elsewhere and bringing them back to the base. All the law does, the court concluded, is to order military stores not to stock the banned items.