Maryland has agreed to pay an ex-guard who appeared nude on a website and in a tattoo magazine $10,000 to get her to drop her wrongful discharge claim after an administrative law judge sided with the guard.
Marcie Betts wasn't intending to become an icon for First Amendment rights when she applied for a job as a prison guard with the Maryland Department of Public Safety and Correctional Services in January, 2003. She just needed a job.
Around here [Hagerstown], you have to work at the [Mack Truck] plant itself or at the prison to find a good paying job, unless you are a doctor or a lawyer," said the 24-year old Betts.
Since graduating high school in 1997, Betts had supported herself, and later her husband, by working in a tattoo parlor, caring for mice bred for research, as a receptionist at a pest control company, and later an insecticide sprayer, and yes, even at the plant as a security guard. In May 2002, she applied for a job at the prison. On May 29, 2002, after filing the application, but before being notified of her acceptance, she sold 81 digital photos of herself that had been taken by her husband to fee-only website Burning Angel" for $300. The website specializes in nude photos of alternative and goth women. On October 29, 2002, Betts was hired as a guard. On November 18, 2003, she entered the Training Academy for prison guards. On January 7, 2003, Betts completed her training and reported for duty. She did so well in training and on the job that the administrative judge made a finding of fact that she was an excellent employee.
On January 20, 2003, Betts was approached by another guard who asked if she had photos on the internet. She told him no. Later that day, a prisoner asked her the same thing and received the same reply.
On January 21, 2003, someone anonymously pushed a packet of the website photos under the warden's door. The photos included nude and scantily-clad shots of the plentifully-tattooed Betts, one of which depicted her licking a dildo with her fingers in her vagina and anus. The warden had the matter investigated and, when confronted with the photos on January 22, 2003, Betts admitted having sold the photos to the website. The warden met with Betts on January 29, 2003, and terminated her effective February 12, 2003. The sole reason given for the termination was that her photos had appeared on the website.
Betts appealed the termination. Her cause caught the attention of the popular press, with a large spread appearing in the Washington Post and Alan Dershowitz, one of the best known lawyers in the country, publishing an article defending Betts in the August 2003 issue of Penthouse magazine. In the article, he asked: If a state prison were permitted to fire a guard based on what the prisoners might imagine, could they also fire a guard who was too busty or too sexy?
The administrative judge held a hearing at which the prison system pulled out all the stops, even hiring the former head of the Virginia Department of Corrections to present the judge with a parade of horrible scenarios that would happen to Betts if she continued to work as a guard. The basic premise of the prison system was that the prisoners, once they possessed a nude photo of Betts, would be unable to keep from solely' viewing her as a sex object and would therefore be unable to control their sexual desire for her and would rape her. This would endanger her and the other guards who would have to come to her rescue. When it was pointed out that no prisoner had access to the internet, they contended that the mere knowledge that Betts had appeared as a nude model would be sufficient to cause the problem. This likely gives us a greater insight into how prison administrators think about women than into how prisoners think. They also pointed out that the prison mail room had intercepted an issue of Tabu Tattoo, which contained a single image of a large tattoo of birds, cherries and a dagger across Betts's chest that had apparently been used without her authorization.
On November 12, 2003, the administrative judge ruled that all of this was rank speculation that paled in comparison to Betts's First Amendment rights. He also ruled that it had not been proven that any prisoner had seen a nude photo of Betts or, with the possible exception of the one who asked her the question, had any inkling that she had posed nude. The prison system had not asked her prior to hiring her, or any other guard, whether she had ever posed nude and did not include it among the examples they gave of conduct unbecoming an officer. No court had ruled that the photos were obscene. Thus, the publication of the photos was protected nonverbal public speech that occurred prior to her being hired. Therefore, the discharge violated her constitutional rights. The judge ordered the prison system to reinstate Betts with full pay and benefits and set a hearing for attorney fees.
The prison system appealed, then, on November 9, 2004, settled the claim by paying Betts $10,000.
Betts was represented by Lawrence G. Walters of Orlando, Florida, an attorney who specializes in representing workers in the adult entertainment industry.
Sources: Decision in Betts v. Department of Public Safety and Correctional Services, OAH No. SPSM-RC1-11-03-07088 (Maryland Office of Administrative Hearings), Los Angeles Times, Washington Post, Associated Press, www.yesportal.com, www.webmastervault.com. A sample photo is viewable at http://burningangel.com/new/preview/marcie/1/
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