BASES MAY SELL ADULT MATERIAL, JUDGE RULES.

Byline: Daily News Staff and Wire Services

Sexually explicit magazines such as Penthouse, Playboy and Hustler can't be banned from sale at military bases, a federal judge ruled Wednesday, striking down the practice as unconstitutional.

``Society is better served by protecting our cherished right to free speech, even at the cost of tolerating speech that is outrageous, offensive and demeaning,'' Judge Shira A. Scheindlin wrote.

At Edwards Air Force Base, the base exchange sells 12 adult magazines, including Penthouse, Playboy, Playgirl, Gallery and Hustler, base officials said.

The adult-oriented magazines are kept on the top shelves, behind opaque shields that cover everything except the titles. The magazines are sold only to patrons over 18.

The Army and Air Force Exchange Service, which runs the exchange, will not sell any item that a federal or state court has deemed obscene. If a publication is determined to be obscene, only the issue that was the subject of the legal battle is removed, base officials said.

Penthouse's parent company and other publishers had challenged the Military Honor and Decency Act of 1996, which forbids the sale or rental of sexual material at any military facility.

The act, added to the new defense budget bill, passed without congressional debate in May. President Clinton signed it in September, and it was to take effect last month.

The judge issued a temporary restraining order last month to prevent the law from going into effect while she considered the publishers' challenge, which said the law violated their rights to free speech and free expression.

Bob Guccione, publisher of Penthouse, said the judge's decision has given ``the First Amendment a new spit-shine.''

``The fact that others might find the magazines offensive is not a rationale for barring them,'' Guccione said.

Scheindlin said the government contended that the act is based on Congress' determination that ``the sale or rental of sexually explicit materials jeopardized the military mission of promoting core values such as `honor, courage and commitment.' ''

Lawmakers who opposed the measure had warned that the ban's loose wording could extend the ban to the Internet, cable television, sex manuals for married couples or the Sports Illustrated swimsuit issue.

Proponents insisted the measure was limited to the sale or rental of sexually explicit magazines and videos. They said service people could still buy the material off base, but it should not be sold along with other discounted goods in post exchanges.

The American Civil Liberties Union also opposed the measure. It said Congress could show no compelling interest for placing restrictions on First Amendment rights.