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Arizona Jail Porn Ban Struck Down
The court of appeals for the Ninth circuit held that a jail rule banning all sexually explicit materials was unconstitutional. In 1993 the Maricopa county jail in Phoenix, Arizona, adopted rules banning all sexually explicit materials from receipt or possession by Jail prisoners. The policy defined "sexually explicit" as any photo, drawing, magazine or pictorial showing frontal nudity. Prisoners found in possession of such material faced disciplinary punishment.
Jonathan Mauro, a pretrial detainee, filed suit after his subscription to Playboy was censored. Mauro claimed the policy violated his First amendment right to free speech. The district court granted summary judgment to the defendants, holding the policy was reasonably related to legitimate penological interests. The court of appeals reversed and remanded.
At the outset the court rejected the Jail's contention that the sexually explicit materials banned by the policy "act as discriminatory conduct in the form of a hostile work environment" and were thus not entitled to First amendment protection. The court also rejected the defendants' claim that Mauro lacked standing to challenge the policy as it applied to anything other than Playboy. The court observed that "A facial overbreadth challenge may be brought to protect the First amendment rights of those not before the court." Since the rule is overbroad and censors a wide variety of publications, the court held Mauro had standing to challenge the policy.
The court analyzed the Jail rule under the reasonableness test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). To withstand constitutional scrutiny, prisons and jails must show that their rules are reasonably related to achieving legitimate penological interests, such as facility safety and security and prisoner rehabilitation.
The court held that the jail had not met its burden of proof showing that the ban on sexually explicit material was reasonably related to the goals of Jail safety. "The county offered no expert testimony, ... nor even a 'reasoned' explanation to support its theories.... At the same time, it imposed a prohibition that went far beyond any sanctioned by this court, or any other. The county has not carried its burden to show that such a far reaching prohibition is 'reasonably related' to legitimate penological interests. It offers no proof or reasoned explanation."
The court faulted the policy for its blanket ban on materials depicting nudity. "There is no issue by issue determination of whether a particular depiction of nudity might cause the unwanted consequences the prison seeks to avoid, nor does the warden have a non delegable duty to make such an individualized determination. The blanket prohibition unnecessarily precludes prisoners access to materials fully protected by the First amendment. The county has not sought to bar a small subset of materials containing obscene or otherwise objectionable nudity while leaving open other means of viewing similar materials.... Rather, in direct contradiction of the Supreme Court's cautionary language in Thornburgh, Maricopa county has enacted a regulation that sweeps too broadly, indiscriminately eliminating large categories of materials without individualzied consideration.
"Regardless of whether the county's policy would be constitutional if applied to ban Playboy magazine, it is not constitutional to ban all depictions of frontal nudity. There is no appropriate 'limiting construction' that may be applied to save the constitutional of the regulation. Accordingly, we hold that it must be struck down as a whole."
"Maricopa county's policy impinges upon the right of inmates to receive material protected by the First amendment. It is overbroad and as such is unconstitutional." The case was remanded for further proceedings. The court did not mention that the censorship policy was enacted as part of Maricopa county sheriff Joe Arpiao's grandstanding buffoonery to live up to his self proclaimed status as "America's Toughest [if not smartest] sheriff." As previously reported in PLN , Arpiao's other antics include tents for prisoners to live in, green baloney sandwiches, chain gangs, pink underwear and a wide ranging pattern of brutality and medical neglect. See: Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998).
Jonathan Mauro, a pretrial detainee, filed suit after his subscription to Playboy was censored. Mauro claimed the policy violated his First amendment right to free speech. The district court granted summary judgment to the defendants, holding the policy was reasonably related to legitimate penological interests. The court of appeals reversed and remanded.
At the outset the court rejected the Jail's contention that the sexually explicit materials banned by the policy "act as discriminatory conduct in the form of a hostile work environment" and were thus not entitled to First amendment protection. The court also rejected the defendants' claim that Mauro lacked standing to challenge the policy as it applied to anything other than Playboy. The court observed that "A facial overbreadth challenge may be brought to protect the First amendment rights of those not before the court." Since the rule is overbroad and censors a wide variety of publications, the court held Mauro had standing to challenge the policy.
The court analyzed the Jail rule under the reasonableness test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). To withstand constitutional scrutiny, prisons and jails must show that their rules are reasonably related to achieving legitimate penological interests, such as facility safety and security and prisoner rehabilitation.
The court held that the jail had not met its burden of proof showing that the ban on sexually explicit material was reasonably related to the goals of Jail safety. "The county offered no expert testimony, ... nor even a 'reasoned' explanation to support its theories.... At the same time, it imposed a prohibition that went far beyond any sanctioned by this court, or any other. The county has not carried its burden to show that such a far reaching prohibition is 'reasonably related' to legitimate penological interests. It offers no proof or reasoned explanation."
The court faulted the policy for its blanket ban on materials depicting nudity. "There is no issue by issue determination of whether a particular depiction of nudity might cause the unwanted consequences the prison seeks to avoid, nor does the warden have a non delegable duty to make such an individualized determination. The blanket prohibition unnecessarily precludes prisoners access to materials fully protected by the First amendment. The county has not sought to bar a small subset of materials containing obscene or otherwise objectionable nudity while leaving open other means of viewing similar materials.... Rather, in direct contradiction of the Supreme Court's cautionary language in Thornburgh, Maricopa county has enacted a regulation that sweeps too broadly, indiscriminately eliminating large categories of materials without individualzied consideration.
"Regardless of whether the county's policy would be constitutional if applied to ban Playboy magazine, it is not constitutional to ban all depictions of frontal nudity. There is no appropriate 'limiting construction' that may be applied to save the constitutional of the regulation. Accordingly, we hold that it must be struck down as a whole."
"Maricopa county's policy impinges upon the right of inmates to receive material protected by the First amendment. It is overbroad and as such is unconstitutional." The case was remanded for further proceedings. The court did not mention that the censorship policy was enacted as part of Maricopa county sheriff Joe Arpiao's grandstanding buffoonery to live up to his self proclaimed status as "America's Toughest [if not smartest] sheriff." As previously reported in PLN , Arpiao's other antics include tents for prisoners to live in, green baloney sandwiches, chain gangs, pink underwear and a wide ranging pattern of brutality and medical neglect. See: Mauro v. Arpaio, 147 F.3d 1137 (9th Cir. 1998).
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Related legal case
Mauro v. Arpaio
| Year | 1998 |
|---|---|
| Cite | 147 F.3d 1137 (9th Cir. 1998) |
| Level | Court of Appeals |
Mauro v. Arpaio, 162 F.3d 547 (9th Cir. 12/02/1998)
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 97-16021
[4] December 02, 1998
[5] JONATHAN D. MAURO, PLAINTIFF-APPELLANT,
v.
JOSEPH M. ARPAIO, SHERIFF; MARICOPA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA, DEFENDANTS-APPELLEES. ARIZONA CIVIL LIBERTIES UNION, INTERVENOR.
[6] D.C. No. CV-95-02729-RCB
[7] FOR PUBLICATION
[8] ORDER
[9] Before: HUG, Chief Judge.
[10] Upon the vote of a majority of nonrecused regular active Judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-Judge panel opinion, Mauro v. Arpaio, No. 97-16021, slip op. at 10013 (9th Cir. Sept. 1, 1998), is withdrawn.
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 97-16021
[4] December 02, 1998
[5] JONATHAN D. MAURO, PLAINTIFF-APPELLANT,
v.
JOSEPH M. ARPAIO, SHERIFF; MARICOPA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA, DEFENDANTS-APPELLEES. ARIZONA CIVIL LIBERTIES UNION, INTERVENOR.
[6] D.C. No. CV-95-02729-RCB
[7] FOR PUBLICATION
[8] ORDER
[9] Before: HUG, Chief Judge.
[10] Upon the vote of a majority of nonrecused regular active Judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-Judge panel opinion, Mauro v. Arpaio, No. 97-16021, slip op. at 10013 (9th Cir. Sept. 1, 1998), is withdrawn.