A federal appeals court Friday upheld the Arizona prison system’s ban on sexually explicit material for inmates, rejecting claims by a censored prison magazine publisher that the policy violates the First Amendment.
The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed with the publisher that one part of the prison system’s Order 914 – banning material that “may,” “could” or “appears to be intended” to cause sexual excitement – was too broad and needed to be dropped.
But it said the rest of the Arizona Department of Corrections, Rehabilitation and Reentry policy is appropriate to keeping order in the prisons and maintaining a safe workplace for corrections employees, and is thus constitutional, even if it limits some speech.
Judge Eric Miller wrote in the opinion that the order is rational as it allows the administration to “mitigate prison violence.”
“Properly construed, it bans only content that graphically depicts nudity or sex acts,” Miller wrote of Order 914. “And so interpreted, the order is rationally related to its purposes.”
Response to the ruling was not immediately available from either the Arizona Attorney General’s Office or from the Human Rights Defense Center which publishes Prison Legal News, the publication at the center of the case.
But one advocate for prisoners in Arizona said that while maintaining security is important, it needs to be balanced against inmates’ rights.
“There are so many other problems that it seems like whether an inmate should be allowed to look at a Playboy magazine centerfold is rather minor,” said Donna Hamm, executive director of Middle Ground Prison Reform.
The prohibition on sexually explicit materials was initiated in 2010, after prison employees, particularly women, said inmates used sexually explicit images to harass them. The court said those materials created unsafe situations for inmates and undermined the prison system’s efforts to rehabilitate prisoners.
The ban on explicit materials is part of a larger order that also prohibits inmates from having information on weapons, locks and security systems, gangs, brewing alcohol and ways to escape from prison, among other categories.
The language on sexually explicit material prohibits depictions of “nudity of either gender” as well as a laundry list of specific sex acts depicted “in either visual, audio or written form.” Since it was adopted, the department said, staff have reported they feel more comfortable “because they are not exposed to unwanted images and text of graphic, explicit sexual content.”
The court said Arizona prisons were among more than 3,000 institutions across the country with subscriptions to Prison Legal News. More than 90 issues of the magazine had been distributed in Arizona prisons without incident before 2014, but officials refused to deliver several issues that year that they said contained sexually explicit material, in violation of Order 914.
Prison Legal News sued the department in 2015, claiming the ban violated the First Amendment and was “not rationally related to (the department’s) stated goals of rehabilitation, reduction of sexual harassment and prison security.”
A district court judge agreed and issued an injunction against further use of the explicit materials ban until the department could amend it to narrow the scope of the content prohibited. The district judge also ordered the prisons to distribute unredacted versions of Prison Legal News editions that had been censored.
But the circuit court ruling Friday lifted most of the injunction, saying that the policy was constitutional on its face, and as it was applied by prison officials.
It also disagreed with the lower court’s ruling on some of the redacted issues: While graphic descriptions of sex acts connected to some crimes were rightly censored, the appeals court said a story about a New Mexico prison riot that talked about guards being beaten and raped was not explicit but “more akin to a mere mention of sexual violence,” which should not have been censored.
It did uphold the lower court’s injunction on section 1.2.17 of the order, the section that bans content “that may, could reasonably be anticipated to, could reasonably result in, is or appears to be intended to cause or encourage sexual excitement or arousal or hostile behaviors, or that depicts sexually suggestive settings, poses or attire.”
That section had been used to censor “medical information as well as mundane images displaying fully clothed women doing nothing that could be considered suggestive,” the court said.
“There is no apparent connection between restricting all content that ‘may’ cause sexual arousal or be suggestive of sex … and the penological interests at stake,” Miller wrote, and that section thus violates the First Amendment.