dissenting:
Freedom of speech is one of those liberties which is so fundamentally essential to the preservation of a stable Government that the Government itself is generally prohibited from interfering with it, and as an Article III court, we are bound to protect it. But the power of Congress to “raise and support Armies” and “provide and maintain a Navy” under Article I, § 8, of the Constitution is also critical to the preservation of both a stable Government ánd to the protection of our liberties, of which the First Amendment is one. In cases of conflict, the balance is often struck in favor of protecting the military mission. This is true, not only with respect to strategic defense matters such as the protection of sailing dates and location of troops,1 but also with respect to that part of the military mission directed toward the preparation of armies and navies “to fight or be ready to fight wars should the occasion arise,” United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955). “ ‘The armed forces depend of a command structure that at times must commit men to combat, not only hazarding their fives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of-response to command. If it does, it is constitutionally unprotected.’ ” Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974) (quoting United States v. Gray, 20 USCMA 63, 42 C.M.R. 255 (1970)).
For these reasons, the Supreme Court has held that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981). However, “deference does not mean abdication,” id. “[M]en and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind them when they enter military service.” Weiss v. United States, 510 U.S. 163, 194, 114 S.Ct. 752, 769, 127 L.Ed.2d 1 (1994) (Ginsburg, J., concurring).2 In short, the fact that the interests of the individual may sometimes be validly subordinated to “ ‘the needs of service,’ ” Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) (quoting Orloff v. Willoughby, 345 U.S. 83, 92, 73 S.Ct. 534, 539, 97 L.Ed. 842 (1953)), does not mean service members lose those rights whenever Congress, in exercising its power to raise armies, so desires. 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.
*289The Military Honor and Decency Act of 1996,10 U.S.C. § 2489a (the “Act”), prohibits “the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense,” which includes military exchanges. 10 U.S.C. § 2489a(a), (d)(2). The Act bans audio and video recordings, and periodicals with visual descriptions, produced in any medium, but does not ban purely written material. 10 U.S.C. § 2489a(d)(l). The term “sexually explicit material” is defined as material “the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.” Id. “Lascivious” is defined by the implementing regulations to mean “lewd and intended or designed to elicit a sexual response.” Department of Defense Directive-Type Memorandum, “Sale or Rental of Sexually Explicit Material on DoD Property” (Dec. 22, 1996). This memorandum also establishes the “Resale Activities Board of Review,” which hás “the authority and responsibility to periodically review material offered or to be offered for sale or rental” at exchanges, and to determine whether such material is “sexually explicit” as defined by the memorandum. Id.
The court below granted appellee’s request for permanent injunctive relief on the basis that the Act violated the Free Speech Clause of the First Amendment and the Due Process Clause of the Fifth Amendment. It reasoned that because the purpose of the Act was to ban expression that the government conceded was “offensive” and “because the First Amendment prevents the government from banning material solely because it is offensive,” the Act was unconstitutional. The district court did not decide whether a military exchange is a public or nonpublic forum, nor whether the Act was viewpoint discriminatory. I agree with the majority that, as these issues are questions of law, we are equally well positioned to decide them. However, that is where my agreement with the majority ends. I would affirm the district court’s opinion.
I.
The Military Honor and Decency Act of 1996 does not prohibit the distribution of all sexually explicit material in military exchanges. Nor does it ban all depictions of nudity. Instead, it bars only the distribution of sexually explicit material, “the dominant theme of which depicts or describes nudity ... in a lascivious way.” Because I believe this is viewpoint discrimination, and the government has failed to meet its burden of justification for this restriction on speech, I respectfully dissent.
The Act’s definition of sexually explicit material includes within its scope much that is not encompassed within the Supreme Court’s definition of “obscenity,” which enjoys virtually no First Amendment protection. To be “obscene” under Miller v. California, 413 U.S. 15, 98 S.Ct. 2607, 37 L.Ed.2d 419 (1973), a publication must (a) taken as a whole and applying contemporary community standards, appeal to the prurient interest, (b) contain patently offensive depictions or descriptions of specified sexual conduct, and (c) on the whole have no serious literary, artistic, political or scientific value. Id. at 24-25, 93 S.Ct. at 2614-16. See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 497, 105 S.Ct. 2794, 2798, 86 L.Ed.2d 394 (1985). The Act does not refer to the prurient interest or to the standards of the community. Nor does it require that the work lack literary, artistic, political or scientific value. The Act therefore covers both protected and unprotected speech. See also Sable Communications, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) (“Sexual expression which is indecent but not obscene is protected by the First Amendment.”). It is the protected speech that is addressed here.
It is axiomatic that the government may not restrict speech because of the message it conveys. Police Dept. v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972); see also Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 828, 115 S.Ct. 2510, 2516 (1995) (“In the realm of private speech or expression, government regulation may not favor one speaker over another.”). Moreover, “[w]hen government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is *290all the more blatant- Viewpoint discrimination is thus an egregious form of content discrimination.” Id; see also Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 62, 103 S.Ct. 948, 964, 74 L.Ed.2d 794 (1983) (Brennan, J., dissenting) (“Viewpoint discrimination is censorship in its purest form ... ”). Even in a nonpublic forum, the government may not regulate speech in “an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46, 103 S.Ct. at 955; see also Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (“Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purposes of the forum ... the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”)3
As the majority points out, the distinction between content and viewpoint discrimination is not “a precise one.” However, the majority’s assertion that “lascivious” is an adjective identifying subject matter does not advance the inquiry: viewpoints and subject matters are both identified by some adjective — the question is whether the statute will skew one side of a debate. “Indecent” speech, or even “sexually explicit” speech, may be regarded as a category of speech, and the regulation of such speech is a content-based regulation. See Sable Communications, 492 U.S. at 126, 109 S.Ct. at 2836. To divide that category between depictions of nudity and other depictions, is yet another division, one step closer to viewpoint discrimination. But in banning distribution of only those depictions of nudity that are “lascivious,” defined as “lewd and intended or designed to elicit a sexual response,” the government is necessarily attempting to regulate a specific perspective — a point of view.
Portrayals of nude men and women designed to elicit a sexual response illustrate an idea: that lust or sexual desire is good, that men and women are sexual beings, or, if depicted in a submissive way, that women or men are submissive objects for humiliation or domination. Depictions of nude men and women in nonsubmissive ways, or in ways not designed to arouse, are permitted under the Act. This is, under relevant precedent, viewpoint discrimination. See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist.,, 508 U.S. 384, 394, 113 S.Ct. 2141, 2147-48, 124 L.Ed.2d 352 (1993) (denying permission to evangelical church to use school facilities to show a film about child rearing and family values solely because the film dealt with a subject from a religious perspective was viewpoint discriminatory when that subject had not been placed off limits to any and all speakers); American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985) (striking down an ordinance prohibiting trafficking in pornography, where pornography was defined as expressive material that depicts women as sexual objects, or as enjoying or deserving humiliation), aff'd mem., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); AIDS Action Comm. v. MBTA, 42 F.3d 1, 12 (1st Cir.1994) (holding that transit authority’s refusal to accept advertisements regarding AIDS prevention for display in subway ears when it had allowed other sexually explicit material to be advertised which represented “the conventional exploitation of women’s bodies” was viewpoint discrimination). It is no answer that the Act excludes such depictions of both men and women: the exclusion of “an entire class of viewpoints” is “just as offensive to the First Amendment as exclusion of only one.” Rosenberger, 515 U.S. at 831, 115 S.Ct. at 2518. If multiple voices are silenced, the debate is simply skewed in multiple ways. Id.4
Nor is this form of expression any less deserving of protection because it may work through “inexpressible emotions,” Cohen v. *291California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788-89, 29 L.Ed.2d 284 (1971). Just as words may be chosen for their emotive force, id,., so too visual pictures can be chosen for their ability to arouse or offend. By restricting the sale of depictions which some viewers find offensive and others titillating, the government favors and protects the viewpoint of those offended and restrict the viewpoint of those who are titillated. “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, 109 S.Ct. 2533, 2545, 105 L.Ed.2d 342 (1989).
Indeed, the government’s defense of the statute unmasks the Act’s viewpoint discrimination. The government asserts that the statute serves the government’s interest in preserving “the military’s image of honor, professionalism, and proper decorum.” The underlying premise is that the military’s distribution of depictions of nudity that are lewd or intended to elicit a sexual response are inconsistent with “honor, professionalism, and proper decorum.” Yet the decision to ban distribution of such material strips military personnel of the right to decide for themselves whether such depictions are consistent with those values.5 It even arguably denies them the right to determine which displays of nudity are lascivious.6 “At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994); see also Board of Educ. v. Pico, 457 U.S. 853, 867, 102 S.Ct. 2799, 2808, 73 L.Ed.2d 435 (1982) (“[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press and political freedom.”).
Thus, the majority’s claims that one does not “go about discussing and considering the political issues of the day from a lascivious viewpoint,” is beside the point. It ignores the political issue of whether nonobscene, lascivious material, whatever form it may take, is necessarily inconsistent with the military’s image of honor, professionalism and decorum, or the promotion of core values.
The majority’s claim that the Supreme Court’s dicta in R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992), that “[a] State might chose to prohibit only that obscenity ... which involves the most lascivious displays of sexual activity,” authorizes the government to ban distribution of all lascivious portrayals of sexually explicit materials, ante at 281, is misguided for two reasons. Not only is no-nobscene sexually explicit speech protected, unlike the obscene speech which is the subject of the Supreme Court’s hypothetical, but to exclude only the most lascivious displays of sexual activity still allows in “the marketplace of ideas” the views expressed by lascivious displays of sexual activity, even if it prohibits the most extreme of those views.
II.
Laws which favor one viewpoint- over another are traditionally subjected to the high*292est level of scrutiny.7 The question is whether, in reconciling the deference due Congress in military matters and our own constitutional responsibility, we must not only give deference to the military judgment as to the importance of the military interest, but must also lower the level of First Amendment scrutiny that would otherwise be applied.
In Parker, the Court upheld a court-martial conviction of an army captain for conduct designed “to promote disloyalty and disaffection among the troops” for publicly advocating that no “colored soldier” should go to Vietnam, and should refuse to fight if sent because they are discriminated against. 417 U.S. at 758, 94 S.Ct. at 2562-63. The Court stated:
While members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.
Id.
Thus, it is clear that, on a military base, some regulations8 that restrict speech because of the message conveyed are permissible. But the speech in Parker was obviously central to the military mission: as the Supreme Court noted, while there was a possibility that the articles of the military code under which Levy was convicted could extend to conduct protected by the First Amendment, Levy’s conduct, “that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment.” Id. at 761, 94 S.Ct. at 2564. Where the speech and the message conveyed are less harmful to the military mission, courts have declined to uphold the restriction. See, e.g., Schacht v. United States, 398 U.S. 58, 61-62, 90 S.Ct. 1555, 1558-59, 26 L.Ed.2d 44 (1970) (striking down a law making it a crime for an actor wearing a military uniform to criticize the conduct or policies of the Armed Forces, or say anything that would “tend to discredit” the military); Bryant v. Secretary of the Army, 862 F.Supp. 574, 584 (D.D.C.1994) (striking down portion of legislation prohibiting publication in Army newspaper of material “non in consonance” with Army policy).
In Brown v. Glines, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980), the Supreme Court considered a regulation which authorized an army base commander to exclude campaign literature (in the form of leaflets and pamphlets) from the base, when such literature presented a “clear danger to the loyalty, discipline, or morale” of the troops. Id. at 350, 100 S.Ct. at 597. The Court emphasized that the regulations “specifically prevent[ed] commanders from halting the distribution of materials that merely criticize the Government or its policies” and that under the regulations the Air Force commanders had no authority “to prohibit the distribution of the magazines and newspapers through regular outlets such as the post ex*293change newsstands.” Id. at 355,100 S.Ct. at 600.9 The Court upheld the regulations because they “restriet[ed] speech no more than [was] reasonably necessary to protect the substantial government interest.” Id. at 355, 100 S.Ct. at 600.
Last year’ this Circuit picked up the intermediate standard of review articulated in Brown v. Glines and stated in dicta that the test should be applied to content-based restrictions as well as content-neutral restrictions:
In the military context, however, as noted above, free speech rights are substantially diminished and the court’s deference to the views of Congress and the military as to the need for speech restriction based on the requirements of discipline and readiness is high. Arguably, even a content-based restriction in the military context need only pass the test of Brown v. Glines.
Able v. United States, 88 F.3d 1280, 1296 (2d Cir.1996). Although I am not convinced that it is appropriate to take the further step of applying this intermediate standard of review to laws which discriminate on the basis of viewpoint, I do not need to decide that issue here. Even applying the intermediate standard of review in this case, the government has failed to meet its burden.
III.
The government argues that pornography is “controversial and unpalatable to many” and that “Congress could therefore reasonably conclude that the exchanges’ traffic in lascivious merchandise tarnishes the military’s image of honor, professionalism, and proper decorum.” It is, additionally, argued that the possible perception of military personnel that lascivious material sold at the base exchanged has been approved by the chain of command “subverts the military’s goal of promoting core values.” The government further claims that the Act is “narrowly tailored to prevent only the official condonation of this merchandise” because it leaves military personnel free to possess, view or listen to sexually explicit material either on or off base, and to acquire such material from private retailers through the mail or from each other if done unofficially.
The fact that Congress “could” have drawn such a conclusion, however, provides the Court no reason to conclude that Congress in fact did so, nor does it assist the inquiry whether a ban of distribution is necessary to protect the military’s image. Significantly, the government offers no evidence, by way of congressional hearings, official reports, explicit congressional findings of fact, or military judgment to support its claims. Instead, the government urges us to accept its unsubstantiated post-hoc rationalization on the principle of judicial deference to congressional choice.
There is no question that “when evaluating whether military needs justify a particular restriction ... courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. This is not just because the military is a “specialized society separate from civilian society,” and because the “ ‘rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty,” Parker, 417 U.S. at 743-44, 94 S.Ct. at 2555-56 (quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953)), but because, as this Court in Able pointed out, “[a]s judges, we are ‘ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,’ ” 88 F.3d at 1293 (quoting Goldman, 475 U.S. at 507, 106 S.Ct. at 1313).
However, the precedents supporting judicial deference to military judgment have relied on substantial evidence of the types outlined above, to justify the infringement on the constitutional right at issue. See, e.g., Rostker, 453 U.S. at 72-74, 101 S.Ct. at 2655-57 (upholding, over an equal protection challenge, a regulation authorizing the President to require registration for military service of males but not females, deferring to extensive *294national attention and public debate, a report of the Senate Armed Services Committee, hearings held by both Houses and consideration by various other committees that “clearly established] that the decision to exempt women from registration was not the ‘accidental by-product of a traditional way of thinking about females.’ ’’) (quoting Califano v. Webster, 430 U.S. 313, 320, 97 S.Ct. 1192, 1196, 51 L.Ed.2d 360 (1977)); Able, 88 F.3d at 1285-86 (noting that extensive hearings were held in both houses of Congress on the issue of the military’s treatment of homosexuals following Presidential directive to revise policy, and the Act itself contained 15 separate findings justifying Congress’ decision to enact the “Don’t ask, Don’t tell” policy). See also Parker, 417 U.S. at 740-41, 94 S.Ct. at 2554-55 (noting that the district court relied on “the voluminous record of the military proceedings” and that “the military tribunals had given fair consideration [to appellee’s claims]”). In this case, the only evidence the government offers in support of its arguments is the title of the Act.
I do not doubt that the government can lawfully enact statutes that promote the military’s image of honor, professionalism, and proper decorum, or foster core values. It can, for example, validly prosecute military personnel for conduct “unbecoming an officer and a gentleman.” See, e.g., Holley v. United States, 124 F.3d 1462 (Fed.Cir.1997) (upholding discharge of officer for taking drugs and contaminating sample for drug test). Conduct “unbecoming an officer and a gentleman” may even comprise speech. See, e.g., Parker, 417 U.S. at 738, 94 S.Ct. at 2553 (noting that Levy was also convicted for “wrongfully and dishonorably” making statements provoking disloyalty). The question is whether that is the substantial governmental interest that motivated Congress in this case. As the Supreme Court stated in Turner Broad. Sys.:
That the Government’s asserted interests are important in the abstract does not mean, however, that the must-carry rules will in fact advance those interests. When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” It must demonstrate that the recited harms are real,not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
512 U.S. at 664, 114 S.Ct. at 2470 (citations omitted).
As the district court found, there is no evidence on the record “to show that the actual sale or rental of sexually explicit material — as opposed to its possession — causes the alleged harm to the military’s core values and appearance to the civilian world.” On appeal, the government urges us to accept the mere possibility that military personnel might view sale of lascivious materials as official endorsement of such materials. Besides the fact that there is no evidence that this “risk” of perceived official endorsement is real, it defies common sense. Prior to the Act, local exchanges were directed to “[s]elect magazines based on merchandising considerations like consumer demand [and] shelf space.” EOP Procedures, 40-11, Special Retail Programs, Chapter 10, § 10-2. Thus, the magazine selection reflect the views of the military personnel, not that of the government. Additionally, the military exchanges also sell alcohol and tobacco, and there is no suggestion that the military is regarded as endorsing drinking or smoking. And if the military still remained genuinely concerned about the mere possibility of the appearance of approval, it could easily place a sign above the materials stating that “The Military Disapproves The Sale Of All Sexually Explicit Material Depicting Nudity In A Lascivious Way.”10
*295The majority’s concern that “if sparseness of legislative history were a basis for invalidation of acts of Congress, a wide swath of legislation could fall before the judicial axe,” ante at 283, is overstated. Clearly, lack of legislative history is not a basis on which to strike down an Act of Congress. In the first place the purpose of many legislative enactments and the manner in which the legislation furthers the purpose are obvious from their text. Furthermore, not every Act of Congress trammels on constitutional rights. When a legislature interferes with constitutional rights, however, it is neither unreasonable nor contrary to authority to require some sort of legislative determination that the infringement of the constitutional right was necessary to further the government interest advanced. See, e.g., Sable Communications, 492 U.S. at 129-30, 109 S.Ct. at 2838 (holding that a ban on indecent telephone messages violated the First Amendment, and noting that “aside form eonclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no evidence as to how effective or ineffective the FCC’s most recent regulations might prove to be”); Reno v. ACLU, — U.S. -, - n. 24, 117 S.Ct. 2829, 2338 n. 24, 138 L.Ed.2d 874 (1997) (holding that the “indecent transmission” and “patently offensive display” provisions of the Communications Decency Act of 1996 violated the First Amendment, the Court pointed to the fact that “[n]o hearings were held on the provisions that became law.”). Cf. Giano v. Senkowski, 54 F.3d 1050, 1058-62 (2d Cir.1995) (Calabresi, J., dissenting).
In this case, the government simply advances post-hoc rationalizations which find no support in Congressional history or military consideration. To rely on the mere fact that a statute has been enacted as evidence of congressional judgment on the issue addressed in the Act, and assert that a court should give deference to that judgment because it involves a matter of military concern, would mean that no regulation in the military context that infringes on constitutional rights would ever be struck down. Enactment of the legislation would be sufficient by itself to support its validity. If this is “deference to congressional choice,” Rostker, 453 U.S. at 67, 101 S.Ct. at 2653, then we have failed to heed the Supreme Court’s warning that “deference does not mean abdication,” id. at 70, 101 S.Ct. at 2655, and have failed to fulfill “our ultimate responsibility to decide the constitutional question,” id. at 67, 101 S.Ct. at 2653, and to protect the liberties which our Constitution guarantees. I, therefore, respectfully dissent.
. In a time of war, for example, "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931).
. See also Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986) ("These aspects of military life [obedience and unity] do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment.”); United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 423, 19 L.Ed.2d 508 (1967) (" 'Even the war power does not remove constitutional limitations safeguarding essential liberties’ ”) (citations omitted).
. Since I conclude that the Act is viewpoint discriminatory, I do not need to decide, and express no view on, whether a military exchange on a military base constitutes a traditional or ''designated” public forum or a nonpublic forum.
. Thus, the majority’s allusion to the fact that the Act does not reference gender does not alter the statute’s viewpoint discriminatory characterization.
. The fact that this decision is removed from the potential consumers and rests entirely in the discretion of the Resale Activities Board of Review increases the danger that the government is censoring viewpoints. As the Supreme Court stated in City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 763, 108 S.Ct. 2138, 2147, 100 L.Ed.2d 771 (1988):
[A] law or policy permitting communication in a certain way for some but not for others raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official.
. I disagree with the majority’s assertion that this argument would prevent the military from enforcing its own definition of honor, professionalism and decorum, such as by deciding that bigotry is inconsistent with those goals, ante at 276. The fact that the government could present a valid military interest to justify regulation of bigotry within the military does not alter the analysis of whether such regulation is viewpoint discriminatory in the first instance. As noted below, post at 281 n. 8, it is clear that the military can, in certain circumstances, prohibit expression because of the message conveyed. To do so, however, it must also show how conveyance of the message will interfere with performance of the military mission.
. As the majority notes, the Supreme Court has at least twice noted without disapproval Circuit Courts' application of strict scrutiny review to viewpoint discrimination. See Perry, 460 U.S. at 48-49, 103 S.Ct. at 956-57 (holding that the exclusion of rival union from teachers’ internal mail system was viewpoint neutral and therefore valid); Lamb's Chapel, 508 U.S. at 394, 113 S.Ct. at 2147-48 (holding a law invalid as viewpoint discriminatory); see also R.A.V., 505 U.S. at 431, 112 S.Ct. at 2569 (Stevens, J., concurring) ("[V]iewpomt-based restrictions of expression require greater scrutiny that subject-matter-based restrictions.”). However, the view that viewpoint discrimination is per se unconstitutional has also been expressed. See, e.g., R.A.V., 505 U.S. at 392, 112 S.Ct. at 2548 (Scalia, J., for the Court) ("[The City] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”).
. The article of the Military Code under which Levy was convicted extended to " ‘[c]ertain disloyal statements by military personnel,’ ” and was intended to cover viewpoint-based speech:
" ’[e]xamples are utterances designed to promote disloyalty or disaffection among troop, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' ’’ Parker, 417 U.S. at 753, 94 S.Ct. at 2560 (quoting the Manual for Court’s Martial 213c (1969)).
. The Court also noted a Department of Defense Directive that advised commanders to “preserve servicemen’s ‘right of expression ... to the maximum extent possible, consistent with good order and discipline and the national security.’ ” Id. at 355, 100 S.Ct. at 600.
. The majority also points to the military’s interest as an employer in "disassociating itself from sexually explicit material,” ante at 284. While I do not doubt that an employer, including the government, could prohibit the display of sexually explicit material in a working environment so pervaded with discriminatory harassment as to alter the conditions of employment and create an abusive working environment, see Mentor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986), the government did not come forward with any evidence that the military constitutes a hostile environment, and, even if it did, the Act does nothing to prohibit the display of such material.