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Prison Legal News v. Ryan, AZ, Ninth Circuit Opinion, PLN Censorship, 2022

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Case 2:15-cv-02245-ROS Document 341-1 Filed 08/01/22 Page 1 of 28

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRISON LEGAL NEWS, a project of:
other Human Rights Defense Center,
Plaintiff-Appellee,
v.
CHARLES L. RYAN, in his official
capacity as Director of the Arizona
Department of Corrections and in his
individual capacity; GAIL
RITTENHOUSE, in her official
capacity as Division Director,
Support Services of the Arizona
Department of Corrections and in her
individual capacity; JEFF HOOD, in
his official capacity as Deputy
Director of the Arizona Department
of Corrections and in his individual
capacity; ALF OLSON, in his official
capacity as an employee of the
Office of Publication Review of the
Arizona Department of Corrections
and in his individual capacity; JAMES
RIGGS, in his official capacity as an
employee of the Office of
Publication Review of the Arizona
Department of Corrections and his
individual capacity; JAMIE GUZMAN,
in her official capacity as an

No. 19-17449
D.C. No.
2:15-cv-02245ROS
OPINION

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PRISON LEGAL NEWS V. RYAN

employee of the Office of
Publication Review of the Arizona
Department of Corrections,
Defendants-Appellants,
and
UNKNOWN PARTIES, named as: Does
1 to 20 (inclusive),
Defendant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted May 12, 2021
San Francisco, California
Filed July 8, 2022
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller

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PRISON LEGAL NEWS V. RYAN

3

SUMMARY *
Prisoner Civil Rights
The panel (1) affirmed in part and reversed in part the
district court’s summary judgment in favor of the publisher
of Prison Legal News; and (2) vacated in part the district
court’s permanent injunction requiring distribution of
certain previously censored issues of Prison Legal News’
monthly journal in an action brought pursuant to 42 U.S.C.
§ 1983 challenging, on its face and as-applied, Arizona
Department of Corrections’ Order 914, under which the
Department may prohibit inmates from receiving mail
containing “sexually explicit material.”
The panel first considered PLN’s facial challenge to the
order. The panel held that the penological interests in jail
security and rehabilitation were legitimate and the order was
neutral in the sense relevant to the analysis set forth in
Turner v. Safley, 482 U.S. 78 (1987). The panel held that
properly construed, the order banned only content that
graphically depicted nudity or sex acts. And so interpreted,
the order was rationally related to its purposes of protecting
the safety of guards and reducing sexual harassment.
Because PLN failed to point to viable alternatives, the
order’s prohibition on sexually explicit materials was not an
exaggerated response to prison concerns.
The panel determined, however, that one aspect of the
order swept more broadly than could be explained by the
Department’s penological objectives: section 1.2.17’s ban
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
*

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PRISON LEGAL NEWS V. RYAN

on content that “may” cause sexual arousal or be suggestive
of sex. That provision was not rationally related to the
Department’s interests; there was no apparent connection
between restricting all content that “may” cause sexual
arousal or be suggestive of sex—in the subjective judgment
of the prison employee reviewing incoming mail—and the
penological interests at stake. Nor did any record evidence
support such a connection.
Turning to PLN’s as-applied challenges, the panel held
that most of the Department’s redactions of the Prison Legal
News issues satisfied Turner and abided by the First
Amendment. The panel reversed the grant of summary
judgment on PLN’s as-applied challenges, except with
respect to the April 2017 and May 2017 issues. The panel
agreed with the district court that the April 2017 issue did
not contain sexually explicit material within the meaning of
the order. As to one portion of the May 2017 issue, the panel
vacated the district court’s judgment and remanded for the
Department to clarify the basis for the redaction, and if
necessary, for the district court to consider whether alternate
bases for the redaction applied.
COUNSEL
Michael E. Gottfried (argued) and Daniel P. Schaack,
Assistant Attorneys General; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Defendants-Appellants.
Lisa Ells (argued), Sanford Jay Rosen, and Amy Xu, Rosen
Bien Galvan & Grunfeld LLP, San Francisco, California;
Daniel Marshall, Human Rights Defense Center, Lake
Worth, Florida; David J. Bodney and Michael A.

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PRISON LEGAL NEWS V. RYAN

5

DiGiacomo, Ballard Spahr LLP, Phoenix, Arizona; for
Plaintiff-Appellee.
OPINION
MILLER, Circuit Judge:
In 2010, the Arizona Department of Corrections issued
Order 914, under which the Department may prohibit
inmates from receiving mail containing “sexually explicit
material.” The Department invoked the order to redact
several issues of Prison Legal News, a monthly journal for
prison inmates that covers developments in the criminal
justice system. The publisher of Prison Legal News sued the
Department under 42 U.S.C. § 1983, arguing that Order 914
violates the First Amendment on its face and as applied to
Prison Legal News. The district court granted summary
judgment to the publisher and entered a permanent
injunction requiring the Department to amend its order and
allow distribution of the issues that had been censored. The
Department appeals. We conclude that most of the order’s
relevant prohibitions are facially constitutional under the
First Amendment and that most of the as-applied challenges
lack merit. We reverse in part, affirm in part, vacate the
permanent injunction in part, and remand for further
proceedings.
I
Before 2010, the Department imposed few restrictions
on inmates’ receipt of sexually oriented writings and images.
But according to the Department, prison staff—and female
employees in particular—complained that inmates often
used sexually explicit images to harass them. The presence
of such materials, the Department says, “created a hostile

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PRISON LEGAL NEWS V. RYAN

environment for inmates, staff, and volunteers.” The
Department also says that such materials undermined its
rehabilitative goals for inmates—especially those convicted
of sex crimes—by frustrating its efforts to impose upon them
“society’s norms and respect for rules and boundaries.” To
address these concerns, the Department issued Order 914.
The Department has periodically amended the order, but
except as otherwise noted, this case involves the version
effective April 7, 2017.
Order 914 prohibits inmates from sending, receiving, or
possessing “sexually explicit material or content that is
detrimental to the safe, secure, and orderly operation of the
facility.” See generally Jones v. Slade, 23 F.4th 1124, 1130–
31 (9th Cir. 2022) (describing Order 914). It defines
“sexually explicit material” as:
Any publication, drawing, photograph, film,
negative, motion picture, figure, object,
novelty device, recording, transcription, or
any book, leaflet, catalog, pamphlet,
magazine, booklet or other item, the cover or
contents of which pictorially or textually
depicts nudity of either gender, or
homosexual, heterosexual, or auto-erotic sex
acts
including
fellatio,
cunnilingus,
masturbation, sadism, sado-masochism,
bondage, bestiality, excretory functions,
sexual activity involving children, an
unwilling participant, or the participant who
is the subject of coercion.
The order includes a non-exhaustive list of examples of
prohibited content, including “instructions regarding the
function of locks and/or security devices,” “instructions for

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PRISON LEGAL NEWS V. RYAN

7

the brewing of alcoholic beverages,” “instructions regarding
the sale, manufacture, concealment, or construction of
ammunition, guns, rifles, bombs, [or] explosives,” and
instructions on “methods of escape and/or eluding capture.”
As relevant here, the list also includes publications that
“depict nudity of either gender” or “depict . . . [p]hysical
contact by another person with a person’s unclothed genitals,
pubic area, buttocks or, if such person is a female, breast.”
Another item in the list, section 1.2.17, imposes a broader
prohibition that covers:
Content in publications, photographs,
drawings, or in any type of image or text, 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, and/or depicts sexual
representations of inmates, correctional
personnel, law enforcement, military,
medical/mental health staff, programming
staff, teachers or clergy.
But the order exempts any publication containing otherwiseprohibited material if it is “commonly considered to
constitute a well-known and widely recognized religious . . .
or literary work,” as well any publication that quotes from
judicial decisions “if the unauthorized content is reasonably
necessary to understand the fundamental legal issue.”
The Department claims that “[s]ince those regulations
were adopted, staff ha[ve] reported that they generally feel
more comfortable, especially female staff, because they are

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not exposed to unwanted images and text of graphic, explicit
sexual content.”
Inmates at more than 3,000 prisons, including those
operated by the Department, subscribe to Prison Legal
News. Before 2014, the Department allowed the circulation
of more than 90 issues of Prison Legal News without
incident. But that year, the Department refused to deliver
several issues because, it said, they contained sexually
explicit material. The Department later reversed that
decision except with respect to one article in one issue. In
2017, the Department redacted articles in three other issues
for similar reasons.
Prison Legal News (PLN), publisher of the eponymous
journal, brought this action against Department officers and
directors in their official and individual capacities, arguing
that Order 914 violates the First Amendment both on its face
and as applied to Prison Legal News. On cross-motions for
summary judgment, the district court held that the order “is
not rationally related to [the Department’s] stated goals of
rehabilitation, reduction of sexual harassment, and prison
security” and is therefore unconstitutional on its face. The
court also held that the Department had acted
unconstitutionally in censoring the four issues.
Thereafter, the district court granted a permanent
injunction requiring the Department to amend Order 914 “to
establish bright-line rules that narrowly define prohibited
content in a manner consistent with the First Amendment;
limit the discretion available to [the Department’s]
employees and agents; and ensure consistency in the
exclusion of sexually explicit material.” It also required the
Department to “distribute complete copies of the previously
censored October 2014, April 2017, May 2017, and June
2017 issues of Prison Legal News” to inmate subscribers.

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The Department appeals. We review the district court’s
grant of summary judgment de novo. See Colwell v.
Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).
II
The starting point for our analysis is Turner v. Safley,
482 U.S. 78 (1987), in which the Supreme Court established
the framework by which we review the constitutionality of
prison rules that impinge on inmates’ constitutional rights.
That framework is highly deferential, and it often requires us
to uphold rules that, in contexts not involving prisons, would
plainly violate the First Amendment.
In Turner, as in many previous cases, the Court
recognized that “[p]rison walls do not form a barrier
separating prison inmates from the protections of the
Constitution.” 482 U.S. at 84. Instead, an inmate retains
rights “not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections
system.” Id. at 95 (quoting Pell v. Procunier, 417 U.S. 817,
822 (1974)). At the same time, the Court recognized that the
administration of prisons is a “difficult undertaking that
requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of
the legislative and executive branches of government,” and
therefore “separation of powers concerns counsel a policy of
judicial restraint.” Id. at 84–85.
Based on those considerations, the Court set forth a
deferential, four-factor test for evaluating whether prison
regulations are constitutional. Turner, 482 U.S. at 89–91; see
Beard v. Banks, 548 U.S. 521, 529 (2006). We have
articulated those factors as follows:

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PRISON LEGAL NEWS V. RYAN
(1) [W]hether there is a valid, rational
connection between the policy and the
legitimate governmental interest put forward
to justify it; (2) whether there are alternative
means of exercising the right; (3) whether the
impact of accommodating the asserted
constitutional right will have a significant
negative impact on prison guards, other
inmates and the allocation of prison resources
generally; and (4) whether the policy is an
“exaggerated response” to the jail’s concerns.

Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999)
(en banc).
In the years since Turner, we and other courts of appeals
have applied its test to uphold the constitutionality of prison
rules that restrict the ingress and possession of sexually
explicit materials. See, e.g., Mauro, 188 F.3d at 1057
(upholding ban on materials that show “frontal nudity”);
Bahrampour v. Lampert, 356 F.3d 969, 972 (9th Cir. 2004)
(upholding ban on mail containing sexually explicit
material, including “portrayals of certain actual or simulated
sexual acts”); Frost v. Symington, 197 F.3d 348, 357–58 (9th
Cir. 1999) (upholding ban on explicit depictions of certain
sexual acts); Amatel v. Reno, 156 F.3d 192, 194 (D.C. Cir.
1998) (upholding ban on distribution of material that is
“sexually explicit or features nudity”). But even in the
context of regulating incoming inmate mail, Turner does not
make the First Amendment “toothless.” Thornburgh v.
Abbott, 490 U.S. 401, 414 (1989). Accordingly, we have
held that restrictions on certain classes of incoming mail
violate the First Amendment when they bear no rational
connection, or are an exaggerated response, to legitimate
penological interests. See Prison Legal News v. Lehman,

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397 F.3d 692, 699–701 (9th Cir. 2005); Morrison v. Hall,
261 F.3d 896, 898, 904–05 (9th Cir. 2001); Prison Legal
News v. Cook, 238 F.3d 1145, 1149–51 (9th Cir. 2001);
Crofton v. Roe, 170 F.3d 957, 959–61 (9th Cir. 1999).
III
With those principles in mind, we consider PLN’s facial
challenge to Order 914. Ordinarily, a plaintiff seeking to
prevail on a facial challenge must show “‘that no set of
circumstances exists under which [the regulation] would be
valid,’” or—although the Supreme Court has acknowledged
some uncertainty on this issue—that the regulation “lacks
any ‘plainly legitimate sweep.’” United States v. Stevens,
559 U.S. 460, 472 (2010) (first quoting United States v.
Salerno, 481 U.S. 739, 745 (1987), and then quoting
Washington v. Glucksberg, 521 U.S. 702, 740 n.7 (1997)
(Stevens, J., concurring in the judgment)). In the First
Amendment context, however, the Court has “recognize[d]
‘a second type of facial challenge,’ whereby a law may be
invalidated as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to [its]
plainly legitimate sweep.’” Id. at 473 (quoting Washington
State Grange v. Washington State Republican Party,
552 U.S. 442, 449 n.6 (2008)). When a plaintiff presents
such a facial challenge to a prison regulation, we evaluate it
using the Turner framework, just as we would if the
challenge were to a specific application of the regulation.
Bahrampour, 356 F.3d at 975.
A
Before we can apply the Turner factors, we must
construe the challenged order. See United States v. Williams,
553 U.S. 285, 293 (2008) (“[I]t is impossible to determine
whether a statute reaches too far without first knowing what

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the statute covers.”). The parties present two questions about
the order’s scope.
First, does the order prohibit mere mentions of sex that
have nothing “explicit” about them? PLN argues—and the
district court agreed—that because the order broadly defines
“sexually explicit material” as “[a]ny publication [that]
pictorially or textually depicts nudity of either gender, or . . .
sex acts,” the order “effectively reads ‘explicit’ out of the
policy” and authorizes the Department to restrict “any text
that discusses sex or nudity in any context or level of detail.”
The Department disagrees, arguing that the order does not
permit it to restrict the “mere mention of a sex act.”
We think the Department has the better argument. As an
initial matter, we agree with PLN and the district court that
the meaning of “sexually explicit material” is governed by
the order’s express textual definition. See Burgess v. United
States, 553 U.S. 124, 129–30 (2008). But in construing that
definition, we cannot lose sight of the actual term it is
defining. See Borden v. United States, 141 S. Ct. 1817, 1830
(2021); Johnson v. United States, 559 U.S. 133, 139–40
(2010). The interpretation that PLN advances would—as the
district court recognized—read the word “explicit” out of the
order. It makes more sense, in our view, for “explicit” to
retain meaning and inform the order’s scope. See Nielsen v.
Preap, 139 S. Ct. 954, 969 (2019).
The requirement that the sexual material be “explicit” is
confirmed by the operative verb in the definition: “depicts.”
That word typically connotes something more than a mere
mention; it implies a level of description akin to that of a
painting. See Webster’s Third New International Dictionary
605 (1993) (“to form a likeness of by drawing or painting”
or “to represent, portray, or delineate in other ways than in
drawing or painting”); accord Oxford English Dictionary

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(3d ed. 2009), https://www.oed.com/view/Entry/50277 (“To
draw, figure, or represent in colours; to paint; also, in wider
sense, to portray, delineate, figure anyhow;” “To represent
or portray in words; to describe graphically;” or “To
represent, as a painting or picture does.”). Read in
conjunction with “explicit,” it indicates that the Department
may restrict sexual content only to the extent that it describes
or shows, in a sufficiently graphic manner, nudity or the
sexual acts specified in the order. A mere mention of sex is
not enough.
Our interpretation is confirmed by the many provisions
of the order that mention particular sexual acts. The record
shows that prisoners may view the order, but under the
district court’s reading, it appears that the order itself would
have to be censored because of its references to sex. We will
not construe the order to be self-prohibiting.
Second, does the order require the Department to make
an individual determination that each piece of “sexually
explicit material” is “detrimental to the safe, secure, and
orderly operation of the facility” before restricting it? The
district court construed that phrase in the sentence at issue—
“inmates are not permitted to send, receive or possess
sexually explicit material or content that is detrimental to the
safe, secure, and orderly operation of the facility”—to
modify only “content” and not “sexually explicit material.”
Under that reading, all sexually explicit material is
proscribed, without any need for an individual determination
that it is detrimental to the operation of the facility.
The Department maintains that the phrase modifies both
terms. Therefore, it says, the order is analogous to the
regulation at issue in Thornburgh, which allowed wardens to
restrict incoming materials that the wardens determined to
be “detrimental to the security, good order, or discipline of

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the institution.” 490 U.S. at 416–17 (quoting 28 C.F.R.
§§ 540.70, 540.71(b) (1988)).
On this point, we conclude that the district court was
correct. The interpretive principle that governs this situation
is the nearest-reasonable-referent canon, which instructs that
a “postpositive modifier normally applies only to the nearest
reasonable referent.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 152 (2012);
see Hall v. United States Dep’t of Agric., 984 F.3d 825, 838
(9th Cir. 2020). Here, the nearest referent for the phrase
“detrimental to the safe, secure, and orderly operation of the
facility” is “content.” It modifies only that term.
The Department invokes the series-qualifier canon,
which teaches that “[w]hen several words are followed by a
clause which is applicable as much to the first and other
words as to the last, the natural construction of the language
demands that the clause be read as applicable to all.”
Paroline v. United States, 572 U.S. 434, 447 (2014) (quoting
Porto Rico Ry., Light & Power Co. v. Mor, 235 U.S. 345,
348 (1920)). But that canon does not apply here because
“sexually explicit material or content” is not an “integrated
clause” that “hangs together as a unified whole, referring to
a single thing.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,
138 S. Ct. 1061, 1077 (2018); see Facebook, Inc. v. Duguid,
141 S. Ct. 1163, 1169–70 (2021). It would make little sense
for “sexually explicit” to modify both “material” and
“content”—so that the phrase might refer to one concept—
because the illustrative list of banned content includes
material that has nothing to do with sex, such as instructions
on locks, weapons, and methods of escape. “Sexually
explicit material” and other “content” detrimental to prison
operations must therefore be distinct prohibitions.

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In support of its reading, the Department also urges us to
apply the canon of constitutional avoidance, under which,
“where an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems.” Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988). But that canon
“comes into play only when, after the application of ordinary
textual analysis, the statute is found to be susceptible of more
than one construction.” Clark v. Martinez, 543 U.S. 371, 385
(2005). We find no such ambiguity here.
B
Having construed Order 914, we now apply Turner.
With one exception, we conclude that the order is facially
constitutional.
1
The first Turner factor is “whether there is a valid,
rational connection between the [rule] and the legitimate
governmental interest put forward to justify it.” Mauro,
188 F.3d at 1058–59. This factor consists of three subrequirements. First, “the governmental objective underlying
the policy [must be] legitimate.” Id. at 1059. Second, the rule
must be “neutral.” Id. And third, the rule must be “rationally
related to [the government’s] objective.” Id. (quoting
Thornburgh, 490 U.S. at 414).
No one disputes that the penological interests here are
legitimate. See Jones, 23 F.4th at 1135. The order’s stated
purpose is “to assist with rehabilitation and treatment
objectives, reduce sexual harassment and prevent a hostile
environment for inmates, staff and volunteers.” We have
held that “[i]t is beyond question that both jail security and

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rehabilitation are legitimate penological interests.” Mauro,
188 F.3d at 1059. Nor is there any question that prison
administrators have legitimate interests in “protecting the
safety of guards” and “reducing sexual harassment.” Id.
The parties also agree that the order is “neutral” in the
sense relevant to the Turner analysis. Outside of the prison
context, First Amendment law distinguishes between
regulations of speech that are “content neutral” and those
that are “content based,” with the latter category comprising
regulations that “appl[y] to particular speech because of the
topic discussed or the idea or message expressed.” City of
Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct.
1464, 1471 (2022) (quoting Reed v. Town of Gilbert,
576 U.S. 155, 163 (2015)). Although the order is not
“content neutral” in that sense, neutrality under Turner “is
not the ‘content neutrality’ we demand in other areas of First
Amendment jurisprudence.” Jones, 23 F.4th at 1136; accord
Amatel, 156 F.3d at 197. Under Turner, a regulation is
“neutral” as long as it applies to specific types of materials
“solely on the basis of the materials’ potential effect on the
prison’s legitimate objectives.” Mauro, 188 F.3d at 1059;
Bahrampour, 356 F.3d at 976. The district court found the
order to be neutral because it furthers “an important or
substantial governmental interest unrelated to the
suppression of expression.” We agree.
The dispute here concerns the third sub-factor: whether
the order is rationally related to the Department’s objectives.
The district court identified no such relationship, so it
deemed unconstitutional all of the order’s prohibitions on
sexual content. In reaching that conclusion, the district court
relied heavily on its interpretation of the order as covering
non-explicit material that merely mentions sex. As we have
explained, however, the order is narrower than that. Properly

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construed, it bans only content that graphically depicts
nudity or sex acts. And so interpreted, the order is rationally
related to its purposes.
The rational-relationship inquiry is highly deferential.
To invalidate a regulation, a court must determine that “the
logical connection between the regulation and the asserted
goal is so remote as to render the policy arbitrary or
irrational.” Turner, 482 U.S. at 89–90. Conversely, a court
may uphold a regulation even if prison officials are unable
to “prove that the banned material actually caused problems
in the past, or that the materials are ‘likely’ to cause
problems in the future.” Mauro, 188 F.3d at 1060. Nor must
the officials be able to demonstrate that the policy in fact
advances the jail’s interests. Rather, it is enough that
officials “might reasonably have thought that the policy”
would do so. Id.
Our precedent establishes that it is rational for prison
officials to restrict sexually explicit materials to mitigate
prison violence and advance related interests. In Mauro, for
example, we upheld as consistent with the First Amendment
a prison ban on publications that displayed frontal nudity.
188 F.3d at 1058–63. In so holding, we recognized that
“[t]he relationship between the jail’s policy of prohibiting
the possession of sexually explicit materials and the goals of
preventing sexual harassment of the female officers, inmate
rehabilitation and maintenance of jail security is not so
‘remote as to render the policy arbitrary or irrational.’” Id.
at 1060 (footnote omitted) (quoting Turner, 482 U.S. at 89–
90); accord Giano v. Senkowski, 54 F.3d 1050, 1053–56 (2d
Cir. 1995). Similarly, in Bahrampour, we upheld a prison
ban on “sexually explicit materials,” and we credited
evidence showing “a rational connection between the
availability of sexually explicit materials and harmful inmate

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behavior such as rape,” “other forms of sexual predation,”
and
“aggressive
and
inappropriate
tendencies.”
Bahrampour, 356 F.3d at 972, 976. Because our precedents
endorse the precise relationship at issue here, we need not
look further. So long as the content at issue meets the narrow
definition of “sexually explicit,” prohibiting it can be
rationally related to the Department’s objectives.
PLN emphasizes that Order 914 reaches written material,
not just pictures. We note that it may be uncommon for
textual material to be covered by our narrow construction of
the order, but we nonetheless conclude that the Department’s
rational interests can extend to restricting those texts that are,
in fact, “sexually explicit.”
One aspect of the order, however, goes too far: section
1.2.17’s ban on 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 provision is not rationally
related to the Department’s interests. There is no apparent
connection between restricting all content that “may” cause
sexual arousal or be suggestive of sex—in the subjective
judgment of the prison employee reviewing incoming
mail—and the penological interests at stake. Nor does any
record evidence support such a connection. All the
Department offers is a declaration saying that the presence
of sexually explicit materials undermines its goals. It also
does not contend that all inmate sexual arousal, or all
materials that reference sex, threaten prison interests.
Section 1.2.17 therefore “sweeps much more broadly than
can be explained by [the Department’s] penological
objectives.” Turner, 482 U.S. at 98–99. Indeed, although our
analysis of this facial challenge does not depend on how the

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19

order has been applied in practice, we note that section
1.2.17 alone appears to be responsible for cases PLN
identifies in which the Department has censored medical
information as well as mundane images displaying fully
clothed women doing nothing that could be considered
suggestive—censorship that the Department makes no effort
to defend.
The Department has cited no appellate case, and we are
aware of none, in which a court has upheld a comparable ban
for a general prison population. We express no view as to
whether such a ban might be permissible if it applied only to
penal facilities that predominantly house sex offenders,
which present unique penological challenges. See Beard,
548 U.S. at 524–26; Waterman v. Farmer, 183 F.3d 208, 215
(3d Cir. 1999).
Because section 1.2.17 does not satisfy Turner’s first
factor, it violates the First Amendment, and we need not
consider the remaining factors. Hrdlicka v. Reniff, 631 F.3d
1044, 1051 (9th Cir. 2011). In crafting a remedy, we must
sever unconstitutional provisions when it is possible to do
so. United States v. Rundo, 990 F.3d 709, 720 (9th Cir. 2021)
(per curiam). We therefore will “limit the solution to the
problem,” Barr v. American Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335, 2350 (2020) (quoting Free Enter. Fund v.
Public Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010)),
and sever the portion of section 1.2.17 covering material 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 behavior, or that
depicts sexually suggestive settings, poses or attire.”

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2

For those provisions other than section 1.2.17, our
analysis must proceed. The district court did not address
Turner factors two through four, but because the relevant
facts are undisputed and those factors raise “purely legal”
issues that have been fully briefed by the parties, we elect to
address them in the first instance rather than delay their
resolution. Planned Parenthood of Greater Wash. & N.
Idaho v. United States Dep’t of Health & Hum. Servs.,
946 F.3d 1100, 1110–11 (9th Cir. 2020). We hold that the
remaining factors all weigh in the Department’s favor.
The second Turner factor is “whether there are
alternative means of exercising the right that remain open to
prison inmates.” 482 U.S. at 90. The parties dispute whether
the “right” should be viewed from PLN’s perspective (its
right to communicate with its readers) or from the inmates’
perspective (their right to receive sexually explicit
materials). In arguing for the former, PLN relies on our
decision in Hrdlicka, in which we held that a publisher had
established a genuine issue of material fact on the second
Turner factor by showing that the challenged regulation left
the publisher without the ability to reach inmates. 631 F.3d
at 1053–54. That approach appears to be inconsistent with
Turner, in which the Court referred to “alternative means . . .
that remain open to prison inmates,” 482 U.S. at 90
(emphasis added), and Thornburgh, in which the Court
concluded that sufficient alternatives were available because
the regulations permitted “a broad range of publications to
be sent, received, and read” by inmates. 490 U.S. at 417–18;
cf. id. at 410 n.9 (rejecting “any attempt to forge separate
standards for cases implicating the rights of outsiders”).
We need not resolve that dispute because even assuming
that PLN is correct that the right should be viewed from its

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21

perspective, this factor still favors the Department. The
parties agree that the Department has allowed inmates to
access essentially all Prison Legal News content since the
Department issued the order in 2010. The as-applied
challenges, after all, involve relatively minor redactions
from just a few articles in four issues of Prison Legal News.
It therefore seems clear for present purposes that the order
leaves PLN with ample alternative means for PLN, in its
words, “to provide its subscribers with information that is
critical to their understanding of their rights while behind
bars.”
And viewing the right from the inmates’ perspective,
PLN concedes that the Department allows inmates to access
personal letters, television shows, prison library books, and
other Prison Legal News articles that contain sexually
explicit content. The order’s exceptions for legal
publications and well-known religious or literary works—
which the Department added in 2017—should provide
additional alternatives for access, even if the Department has
not yet invoked those exceptions.
3
The third Turner factor is “the impact that
accommodation of the asserted constitutional right would
have on prison personnel, other inmates, and the allocation
of prison resources”; here, “the impact of allowing inmates
unrestricted access to sexually explicit materials.” Mauro,
188 F.3d at 1061. In evaluating this factor, we consider the
effect of allowing inmates to access the entire class of
relevant publications. See id. at 1061–62; Thornburgh,
490 U.S. at 418.
This factor also supports the Department. In Mauro, we
held that allowing inmates to access images of nudity would

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PRISON LEGAL NEWS V. RYAN

significantly undermine prison interests because it “could
lead to the bartering of sexually explicit materials and
anatomical comparisons which could in turn lead to fights
between inmates” and expose officers to sexual harassment.
188 F.3d at 1061–62. That conclusion is equally valid here.
See Thornburgh, 490 U.S. at 418; Frost, 197 F.3d at 358.
4
The fourth and final Turner factor is “whether the policy
is an exaggerated response to the jail’s concerns.” Mauro,
188 F.3d at 1062. “The burden is on the [plaintiff]
challenging the regulation . . . to show that there are obvious,
easy alternatives to the regulation” that would fully
accommodate the inmate’s rights at a de minimis cost to
valid penological interests. Id. Turner does not require the
Department to use the “least-restrictive-alternative” means
of achieving its goal. Overton v. Bazzetta, 539 U.S. 126, 136
(2003).
PLN proffers two alternatives that the Department might
employ, but both of them are lacking. First, PLN suggests
that the Department confine itself to restricting only
“obscene” material. By “obscene,” PLN refers to the
obscenity standard from Miller v. California, 413 U.S. 15
(1973). But obscene speech is not protected by the First
Amendment and may be prohibited even for non-prisoners,
so it does not implicate Turner. See Ramirez v. Pugh,
379 F.3d 122, 129 n.2 (3d Cir. 2004). This “alternative”
would therefore involve no prison-specific restriction at all.
Second, PLN suggests that the Department restrict only
“salacious” material, which it describes as publications that
are “promoted on the basis of sex, with [their] contents . . .
plainly intended to cause arousal.” We disagree that this
alternative would impose a de minimis cost on valid

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PRISON LEGAL NEWS V. RYAN

23

penological interests. Such a restriction would be far more
limited than those that we upheld in Mauro and
Bahrampour. And it would allow inmates to receive any type
of lurid content so long as its publisher did not promote it
based on its sexual nature.
Because PLN failed to point to a viable alternative, we
conclude that the order’s prohibition on sexually explicit
materials “is not an exaggerated response to prison
concerns.” Casey v. Lewis, 4 F.3d 1516, 1523 (9th Cir.
1993). All four Turner factors therefore support the order’s
constitutionality. Except for the portion of section 1.2.17
addressed above, we uphold the order’s prohibitions on
sexual material in incoming inmate mail as consistent with
the First Amendment.
IV
We turn next to PLN’s as-applied challenges, which are
also subject to the Turner framework. Bahrampour,
356 F.3d at 975. The Department asserts that our inquiry is
limited to whether “the publications were covered by” the
order. That is surely a necessary condition for upholding a
restriction on a publication—if a publication is not covered
by a prison policy, then presumably it does not relate to the
interests the policy is meant to vindicate, at least as the
prison has articulated them. But it is not sufficient by itself
because Turner requires us to consider “whether applying
the regulation to [the] speech . . . was rationally related to the
legitimate penological interest asserted by the prison.”
Hargis v. Foster, 312 F.3d 404, 410 (9th Cir. 2002).
With at least one exception, we conclude that most of the
Department’s redactions of the Prison Legal News issues
satisfy Turner and abide by the First Amendment.

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A

The Department redacted portions of one article from the
October 2014 issue of Prison Legal News. That article
describes the Tenth Circuit’s decision in Graham v. Sheriff
of Logan Cty., 741 F.3d 1118 (10th Cir. 2013), in which the
court held that an inmate could not bring an Eighth
Amendment claim based on an incident in which she
engaged in sexual activity with two prison guards. The
redacted language summarizes and quotes portions of the
opinion that describe—in graphic detail—the facts
underlying the interactions. (We will leave the licentious
passages in the decent obscurity of the Federal Reporter,
Third Series.)
The redactions were rationally related to the
Department’s penological interests, including deterring the
harassment of guards. Under Turner’s deferential standards,
the connection to the Department’s interests was not so
“remote as to render the [application of the] policy arbitrary
or irrational.” Mauro, 188 F.3d at 1060 (footnote omitted)
(quoting Turner, 482 U.S. at 89–90). That the depiction of
sex was arguably academic in nature—because it came from
a court opinion—does not defeat this connection.
PLN does not argue that prisoners have an enhanced
right to receive materials that quote from court decisions, so
we do not consider that question. See Shaw v. Murphy,
532 U.S. 223, 228, 231–32 (2001); Lewis, 518 U.S. at 350–
51. Nor do we consider whether the Department would be
required to admit this material under its exception for
publications that directly quote from court decisions “if the
unauthorized content is reasonably necessary to understand
the fundamental legal issue.” That exception is contained in
the 2017 version of the order but was not in effect at the time
the Department redacted this article.

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25

The district court also found the redaction arbitrary and
irrational
because
the
Department
admitted
indistinguishable text in other issues of Prison Legal News.
We agree that the other text is not meaningfully different
because it likewise graphically depicts sexual interactions
between guards and inmates. But while that would be a
strong argument in a First Amendment case not involving
prisons, the Supreme Court in Thornburgh rejected the
argument that inconsistency in prison censorship is enough
to establish a violation, reasoning that “greater consistency
might be attainable only at the cost of a more broadly
restrictive rule against admission of incoming publications.”
490 U.S. at 417 n.15; see Jones, 23 F.4th at 1138
(“Variations in the enforcement of a policy will not always
rise to the level of inconsistent application.”). So too here.
B
The April 2017 issue of Prison Legal News describes a
New Mexico prison riot in which a group of convicts
orchestrated an insurrection and then murdered dozens of
fellow prisoners. At issue is one sentence redacted by the
Department: “A dozen guards were taken hostage during the
incident; some were beaten and raped.” (The Department
also redacted several other sentences in the article, but PLN
does not challenge those redactions.)
Although this passage presents a close question, we
agree with the district court that the redaction violates the
First Amendment. Even when the censored sentence is
considered in the context of the article as a whole, it does not
describe the rape of prison guards in a sufficiently graphic
manner to make the sentence “sexually explicit” within the
meaning of the order. Rather, it is more akin to a mere
mention of sexual violence, which the order does not allow
the Department to restrict. Because the passage is not

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PRISON LEGAL NEWS V. RYAN

covered by the order, redacting it cannot have been rationally
related to the Department’s legitimate penological goals.
C
The Department redacted portions of four articles in the
May 2017 issue that describe instances of sexual and
physical violence. It was rational for the Department to
redact the portions of those articles graphically describing
incidents of sexual violence perpetrated against minors. See
Bahrampour, 356 F.3d at 972, 976; see Dawson, 986 F.2d
at 259 & n.2.
The only redaction from the May 2017 issue that we
question is the following one:
The details of the assault on Demarest are
chilling. At one o’clock in the morning,
Brown awakened to the sound of glass
shattering in the entryway of his home. He
ran to Demarest’s room to tell him someone
was breaking in, but Vukovich was right
behind him. Vukovich told Demarest to
confirm his name and that he was a registered
sex offender – for a crime for which he had
served nine months, ten years earlier. “He
told me to lay down on my bed and I said
‘no.’ He said ‘get on your knees’ and I said
‘no.’ He said, ‘I am an avenging angel, I’m
going to mete out justice for the people you
hurt,’” Demarest stated. Then Vukovich hit
him in the head with the hammer four or five
times before Demarest lost consciousness.
It is unclear whether the district court determined that this
passage was redacted for its sexual content, because the only

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27

mention of sex relates to Demarest’s status as a sex offender.
We doubt that the Department redacted the passage for that
reason, but if it did, Demarest’s status as a sex offender does
not qualify as a “depict[ion]” of sex. Because the
Department has articulated other bases on which it could
have redacted the article, we remand for the Department to
clarify its position and, if necessary, for the district court to
consider whether those alternate bases apply.
D
The redactions from the June 2017 issue are from two
articles, one condemning a light sentence given to a man
who committed a heinous act of sexual violence on a minor,
and another describing the exoneration of a defendant who
had committed a similar act. The redacted passages describe
the acts in question. Redacting these graphic descriptions of
child sexual assault was rationally related to the
Department’s penological goals.
To the extent that Turner factors two through four apply
to PLN’s as-applied challenges, we incorporate our earlier
analysis of them. We hold that, with the potential exception
of the one redaction from the May 2017 issue noted above,
all four Turner factors support the Department. PLN’s asapplied challenges therefore fail.
*

*

*

We reverse the district court’s partial grant of summary
judgment on PLN’s facial First Amendment claims, except
with respect to the portion of section 1.2.17 discussed above,
as to which we affirm. We reverse the grant of summary
judgment on PLN’s as-applied challenges, except with
respect to the April 2017 and May 2017 issues. As to those
challenges, we affirm the district court’s judgment on the

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April 2017 redaction and vacate the district court’s judgment
on the May 2017 redaction and remand for further
consideration. Accordingly, we vacate the district court’s
order entering a permanent injunction except as to the April
2017 redaction and remand for further proceedings
consistent with this opinion.
AFFIRMED in part, REVERSED
VACATED in part, and REMANDED.

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