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Congress Bans Porn in Federal Prisons
With little notice and no fanfare on September 30, 1996, president Clinton signed into law the mammoth Omnibus Consolidated Appropriations Bill, PL 104-208, which is the federal government's budget. Section 614 of the law states: "None of the funds made available in this Act to the federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the federal official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity." This law is being called the "Ensign Amendment" after its author Republican congressman John Ensign of Nevada.
The Bureau of Prisons (BOP) promptly promulgated new censorship rules at 61 F.R. 57568 to modify 28 C.F.R. § 540. The amended mail censorship rules duly state that no commercially published information or material will be made available to prisoners if it features nudity or is sexually explicit. The BOP defines nudity as "a pictorial depiction where genitalia or female breasts are exposed."
The real intent of the law change is seen in the memorandums distributed by BOP wardens to their captive populations as part of the law's implementation. PLN readers across the country have sent us copies of memos. A typical example is one authored by FCI Butner, North Carolina, warden J.M. Vanyur. It repeats the language of the Ensign amendment and states "December 1, 1996, has been established for all Bureau facilities as a cut off date for inmates receiving sexually explicit publications, i.e. Hustler, Penthouse, Playboy." It then goes on to state: "Implementation of this legislation will prohibit you from receiving certain publications to which some of you currently subscribe. Accordingly, if you have subscriptions to publications that contain sexually explicit material or nudity you should cancel the subscription or have the publications sent to someone in the community for their use. Publications that arrive at the institution which may not be distributed based on the above law, will be returned to sender."
Shortly after the memos were posted several BOP prisoners filed suit challenging the censorship policy and seeking preliminary injunctions. As we go to press there appear to have been no rulings on these cases. Burton Joseph, special counsel to Playboy, informed one PLN reader that Playboy was working with the Media Coalition, ACLU National Prison Project and others to bring a court challenge to the law.
Prisoners weren't the only ones whose first amendment rights were targetted for ruthless suppression by Clinton and congress. At the same time congress enacted the Ensign amendment it passed, with no sense of irony, the "Military Honor and Decency Act of 1996" which forbids the sale or rental of sexually explicit material at any U.S. military facility. On January 22, 1997, that law was struck down as unconstitutional by district court judge Shira Sheindlin of New York. See: General Media Communications Inc. v. Perry, F. Supp. (SD NY 1997). The message from congress and Clinton is that if you're a prisoner or a soldier the first amendment's guarantee of free speech means nothing. I suspect that if Clinton and congress thought they could impose such draconian limits on the free speech of all citizens they would do so. Instead, they choose to test the waters with the most vulnerable, institutionalized segments of the population.
It is doubtful that the BOP ban, couched as a limitation in how appropriated federal funds are spent, will pass constitutional muster. Thornburgh v. Abbott, 109 S.Ct. 1874 (1989) is the leading case on prison censorship of publications. While it allows prison officials wide discretion in the censorship of prisoner mail, it specifies that such censorship cannot take place due to the unpopular political or sexual nature of the material. Moreover, the Ensign amendment's biggest weakness may turn out to be that it bears no discernible connection to penological goals of any type, much less legitimate goals.
Obscene materials are those which depict explicit sexual activity as defined by state or federal law; which violate contemporary community standards and which have absolutely no political, social or artistic value. Obscene materials are not entitled to constitutional protection. See: Miller v. California, 413 U.S. 15 (1973). However, "... nudity alone is not enough to make material legally obscene under the Miller standards." Jenkins v. Georgia, 418 U.S. 153, 161 (1974). "Sexual expression which is indecent but not obscene is protected by the first amendment...." Sable Communications of California v. FCC, 109 S.Ct. 2829, 2836 (1989).
"Sexually explicit ... does not mean obscene." U.S. v. Guarino, 729 F.2d 864, 870 (1st Cir. 1984)(en banc). See also: Fantasy Bookstore Inc. v. City of Boston, 652 F.2d 1115, 1126 (1st Cir. 1981). The government bears the burden of proving obscenity. See: U.S. v. 2,200 Paperback Books, 565 F.2d 566, 570 (9th Cir. 1977). In the past, courts have found that materials graphically depicting sexual intercourse, group sex, fellatio, anal sex and masturbation are not obscene and are thus entitled to constitutional protection. See: U.S. v. MK Enterprises, 719 F. Supp. 871 (D NE 1989); U.S. v. Various Articles of Obscene Merchandise, Schedule 2102, 709 F.2d 132 (2nd Cir. 1983).
Applying these principles to prisoners, courts have held that sexually explicit materials cannot be censored solely because prison officials find the contents morally objectionable. See: Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982); Inmates of the Milwaukee County Jail v. Peterson, 353 F. Supp. 1157 (ED WI 1973); Palmigiano v. Travisono, 317 F. Supp. 776 (D RI 1970); McMurray v. Phelps, 533 F. Supp. 742 (WD LA 1982); Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982); Montana v. Commissioners Court, 659 F.2d 19 (5th Cir. 1981) and Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993).
Courts have consistently found that there is no causal connection between sexually explicit materials and violence or "deviant sexual behavior." See: Stanley v. Georgia, 394 U.S. 557, 566 (1969); Dworkin v. Hustler Inc., 867 F.2d 1188, 1199 n. 8 (9th Cir. 1989) and American Booksellers Association v. Hudnut, 771 F.2d 323, 329 n.2 (7th Cir. 1985). Thus it is unlikely that prison officials will be able to prove any type of legitimate penological interest to uphold the censorship of sexually explicit materials to prisoners.
PLN will report the outcome of litigation challenging the Ensign amendment in upcoming issues. We ask that readers keep us posted of developments in the case.
The Bureau of Prisons (BOP) promptly promulgated new censorship rules at 61 F.R. 57568 to modify 28 C.F.R. § 540. The amended mail censorship rules duly state that no commercially published information or material will be made available to prisoners if it features nudity or is sexually explicit. The BOP defines nudity as "a pictorial depiction where genitalia or female breasts are exposed."
The real intent of the law change is seen in the memorandums distributed by BOP wardens to their captive populations as part of the law's implementation. PLN readers across the country have sent us copies of memos. A typical example is one authored by FCI Butner, North Carolina, warden J.M. Vanyur. It repeats the language of the Ensign amendment and states "December 1, 1996, has been established for all Bureau facilities as a cut off date for inmates receiving sexually explicit publications, i.e. Hustler, Penthouse, Playboy." It then goes on to state: "Implementation of this legislation will prohibit you from receiving certain publications to which some of you currently subscribe. Accordingly, if you have subscriptions to publications that contain sexually explicit material or nudity you should cancel the subscription or have the publications sent to someone in the community for their use. Publications that arrive at the institution which may not be distributed based on the above law, will be returned to sender."
Shortly after the memos were posted several BOP prisoners filed suit challenging the censorship policy and seeking preliminary injunctions. As we go to press there appear to have been no rulings on these cases. Burton Joseph, special counsel to Playboy, informed one PLN reader that Playboy was working with the Media Coalition, ACLU National Prison Project and others to bring a court challenge to the law.
Prisoners weren't the only ones whose first amendment rights were targetted for ruthless suppression by Clinton and congress. At the same time congress enacted the Ensign amendment it passed, with no sense of irony, the "Military Honor and Decency Act of 1996" which forbids the sale or rental of sexually explicit material at any U.S. military facility. On January 22, 1997, that law was struck down as unconstitutional by district court judge Shira Sheindlin of New York. See: General Media Communications Inc. v. Perry, F. Supp. (SD NY 1997). The message from congress and Clinton is that if you're a prisoner or a soldier the first amendment's guarantee of free speech means nothing. I suspect that if Clinton and congress thought they could impose such draconian limits on the free speech of all citizens they would do so. Instead, they choose to test the waters with the most vulnerable, institutionalized segments of the population.
It is doubtful that the BOP ban, couched as a limitation in how appropriated federal funds are spent, will pass constitutional muster. Thornburgh v. Abbott, 109 S.Ct. 1874 (1989) is the leading case on prison censorship of publications. While it allows prison officials wide discretion in the censorship of prisoner mail, it specifies that such censorship cannot take place due to the unpopular political or sexual nature of the material. Moreover, the Ensign amendment's biggest weakness may turn out to be that it bears no discernible connection to penological goals of any type, much less legitimate goals.
Obscene materials are those which depict explicit sexual activity as defined by state or federal law; which violate contemporary community standards and which have absolutely no political, social or artistic value. Obscene materials are not entitled to constitutional protection. See: Miller v. California, 413 U.S. 15 (1973). However, "... nudity alone is not enough to make material legally obscene under the Miller standards." Jenkins v. Georgia, 418 U.S. 153, 161 (1974). "Sexual expression which is indecent but not obscene is protected by the first amendment...." Sable Communications of California v. FCC, 109 S.Ct. 2829, 2836 (1989).
"Sexually explicit ... does not mean obscene." U.S. v. Guarino, 729 F.2d 864, 870 (1st Cir. 1984)(en banc). See also: Fantasy Bookstore Inc. v. City of Boston, 652 F.2d 1115, 1126 (1st Cir. 1981). The government bears the burden of proving obscenity. See: U.S. v. 2,200 Paperback Books, 565 F.2d 566, 570 (9th Cir. 1977). In the past, courts have found that materials graphically depicting sexual intercourse, group sex, fellatio, anal sex and masturbation are not obscene and are thus entitled to constitutional protection. See: U.S. v. MK Enterprises, 719 F. Supp. 871 (D NE 1989); U.S. v. Various Articles of Obscene Merchandise, Schedule 2102, 709 F.2d 132 (2nd Cir. 1983).
Applying these principles to prisoners, courts have held that sexually explicit materials cannot be censored solely because prison officials find the contents morally objectionable. See: Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982); Inmates of the Milwaukee County Jail v. Peterson, 353 F. Supp. 1157 (ED WI 1973); Palmigiano v. Travisono, 317 F. Supp. 776 (D RI 1970); McMurray v. Phelps, 533 F. Supp. 742 (WD LA 1982); Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982); Montana v. Commissioners Court, 659 F.2d 19 (5th Cir. 1981) and Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993).
Courts have consistently found that there is no causal connection between sexually explicit materials and violence or "deviant sexual behavior." See: Stanley v. Georgia, 394 U.S. 557, 566 (1969); Dworkin v. Hustler Inc., 867 F.2d 1188, 1199 n. 8 (9th Cir. 1989) and American Booksellers Association v. Hudnut, 771 F.2d 323, 329 n.2 (7th Cir. 1985). Thus it is unlikely that prison officials will be able to prove any type of legitimate penological interest to uphold the censorship of sexually explicit materials to prisoners.
PLN will report the outcome of litigation challenging the Ensign amendment in upcoming issues. We ask that readers keep us posted of developments in the case.
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