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Court Denies BOP’s Dismissal Motion in Challenge of Ensign Amendment
A Colorado federal district court denied a motion to dismiss filed by the Bureau of Prisons (BOP) in a lawsuit alleging the “Ensign Amendment” violates the First Amendment, as does 28 C.F.R. §540.72, which implements that amendment.
The Ensign Amendment bars the use of BOP funds to pay for distribution of commercial material that “is sexually explicit or features nudity.” BOP’s regulation defined “nudity” as “a pictorial depiction where genitalia or female breasts are exposed.” “Features” means that “the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of the individual one-time issues.” “Sexually explicit” means “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation.” Such materials are returned to the publisher.
The Court found BOP had not produced evidence to demonstrate any rational connection between the stated rehabilitation goal and the Ensign Amendment and the challenged regulation. While there may, at first blush, be “common sense” reasons for the regulation, the Court held “it may well be the better practice where the challenged regulations are apparently being applied to all prisoners,” that compete record be made.
Such a record may “refute what is ostensibly a common sense conclusion.” Here, the prisoner is not a convicted sex offender and is subject to the “most rigorous security prohibitions in the federal prison system.”
As such, the Court denied the BOP’s motion to dismiss and ordered further proceedings on the prisoner’s “as applied” First Amendment claim. See: Jordan v. Sosa, 2006 U.S. Dist. Lexis 82037
The Ensign Amendment bars the use of BOP funds to pay for distribution of commercial material that “is sexually explicit or features nudity.” BOP’s regulation defined “nudity” as “a pictorial depiction where genitalia or female breasts are exposed.” “Features” means that “the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of the individual one-time issues.” “Sexually explicit” means “a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation.” Such materials are returned to the publisher.
The Court found BOP had not produced evidence to demonstrate any rational connection between the stated rehabilitation goal and the Ensign Amendment and the challenged regulation. While there may, at first blush, be “common sense” reasons for the regulation, the Court held “it may well be the better practice where the challenged regulations are apparently being applied to all prisoners,” that compete record be made.
Such a record may “refute what is ostensibly a common sense conclusion.” Here, the prisoner is not a convicted sex offender and is subject to the “most rigorous security prohibitions in the federal prison system.”
As such, the Court denied the BOP’s motion to dismiss and ordered further proceedings on the prisoner’s “as applied” First Amendment claim. See: Jordan v. Sosa, 2006 U.S. Dist. Lexis 82037
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Related legal case
Jordan v. Sosa
| Year | 2006 |
|---|---|
| Cite | 2006 U.S. Dist. Lexis 82037 |
| Level | District Court |
| Injunction Status | N/A |