WASHINGTON — A federal appeals court upheld the Arizona prison system’s ban on sexually explicit material for inmates on Friday, dismissing claims by a censored prison magazine publisher that the policy violates the First Amendment.
The decision of a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed with the publisher that part of the prison system’s Order 914 – prohibiting material that “may”, “might” or “appear intended” to cause excitement – was too broad and should be dropped.
But he said the rest of the Arizona Department of Corrections, Rehabilitation and Rehabilitation policy is appropriate for maintaining order in prisons and maintaining a safe workplace for corrections employees, and is therefore constitutional, even if it limits certain speeches.
Judge Eric Miller wrote in opinion that the order is rational because it allows the administration “to attenuate prison violence”.
“Correctly interpreted, it prohibits only content that graphically depicts nudity or sexual acts,” Miller wrote of Order 914. “And so interpreted, the order is rationally connected to its purposes.”
Response to the ruling was not immediately available from either the Arizona attorney general’s office or the Human Rights Defense Center, which publishes Prison Legal News, the publication at the center of the case.
But a prisoner advocate in Arizona said while maintaining security is important, it must be weighed against the rights of inmates.
“There are so many other issues that it seems like whether an inmate should be allowed to look at a centerfold of Playboy magazine is rather minor,” said Donna Hamm, executive director of Middle Ground Prison Reform.
The ban on sexually explicit content was launched in 2010, after prison staff, particularly women, said inmates were using sexually explicit images to harass them. The court said these materials created dangerous situations for inmates and undermined the prison system’s efforts to rehabilitate prisoners.
The prohibition of explicit content is part of a larger order which also prohibits inmates from having information about weapons, locks and security systems, gangs, the manufacture of alcohol, and ways to escape from prison, among other categories.
The language on sexually explicit material prohibits depictions of “nudity of either sex” as well as a long list of specific sexual acts depicted “in visual, audio or written form”. Since its adoption, the department said, staff have reported feeling more comfortable “because they are not exposed to unwanted images and text of graphic and explicit sexual content.”
The court said Arizona prisons were among more than 3,000 institutions across the country with subscriptions to Prison Legal News. Over 90 issues of the magazine had been distributed to Arizona prisons without incident prior to 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, saying the ban violated the First Amendment and was “not rationally connected to (the department’s) stated goals of rehabilitation, sexual harassment reduction, and prison security.”
A district court judge agreed and issued an injunction against further use of the material’s explicit ban until the department could amend it to narrow the scope of the banned content. The district judge also ordered prisons to distribute unredacted versions of editions of Prison Legal News that had been censored.
But the circuit court’s decision on Friday lifted most of the injunction, saying the policy was constitutional on its face and as enforced by prison officials.
He also disagreed with the lower court’s ruling on some of the redacted issues: While graphic descriptions of sex acts related to some crimes were rightly censored, the appeals court said that a story about a riot in a New Mexico prison that spoke of guards being beaten and raped was not explicit but “closer to a mere mention of sexual violence”, which should not have been censored.
He upheld the lower court’s injunction on section 1.2.17 of the order, the section that prohibits content “that may, could reasonably be anticipated, could reasonably cause, is or appears to be intended to cause or encourage arousal or sexual arousal”. or hostile behavior, or that depicts sexually suggestive settings, poses, or clothing.
This section had been used to censor “medical information as well as mundane images showing fully clothed women doing nothing that could be considered suggestive”, the court said.
“There is no apparent connection between the restriction of any content that ‘may’ cause sexual arousal or suggest sex…and the penological interests at stake,” Miller wrote, and this section thus violates the First Amendment.