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No Judicial Review or Order Required for Prison Censorship

The U.S. Court of Appeals for the Seventh Circuit held that the Wisconsin Department of Corrections (DOC) did not have to obtain a court order or initiate judicial proceedings against publications to censor them.

A prisoner incarcerated in the Wisconsin DOC filed a lawsuit against the DOC for censoring books that had explicit descriptions of sexual acts in them. The U.S. District Court for the Western District of Wisconsin ruled against the DOC and granted the prisoner injunctive relief, holding that the DOC should not have censored prisoners mail without first instituting judicial proceedings against the publications within 15 days from receipt at the institution.

The court of appeals disagreed with the district court and used standards set forth by the U.S. Supreme Court in Procunier v. Martinez, 416 U.S. 369, 94 S.Ct. 1800, 40 L.Ed.2d 244 (1974), to reverse the district court's ruling and held that the DOC need not initiate judicial proceedings to censor publications. The case was reversed and remanded for further proceedings. See: Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974).

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Related legal case

Gaugh v. Schmidt

Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 06/05/1974)


[2] No. 74-1073, SEPTEMBER TERM, 1973 APRIL SESSION 1974

[3] 1974, 498 F.2d 10

[4] decided: June 5, 1974.


[6] Appeal from the United States District Court for the Western District of Wisconsin. No. 73-C-64 JAMES E. DOYLE, Judge.

[7] Hastings, Senior Circuit Judge, Sprecher, Circuit Judge, and Steckler, District Judge.*fn*

[8] Author: Per Curiam

[9] Defendants Wilbur J. Schmidt, Secretary of the Wisconsin Department of Health and Social Services, and Sanger B. Powers, Administrator of the Division of Corrections of Wisconsin, appealed from an order enjoining them "from denying published materials to plaintiff and other persons confined at adult institutions . . . unless judicial proceedings are instituted against the publications within 15 days from receipt at the institution. . . ."*fn**

[10] In the district court's opinion, it held that "censorship of reading matter ordered by prisoners can be undertaken only in accord with the procedures for prior administrative restraint of expression enunciated in Freedman v. Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965), and Blount v. Rizzi, 400 U.S. 410, 27 L. Ed. 2d 498, 91 S. Ct. 423 (1971)." The district judge therefore concluded that "[he] must enjoin defendants Schmidt and Powers from denying plaintiff access to reading matter he has ordered unless they initiate judicial proceedings against the reading matter promptly upon its receipt at the correctional institution." Gaugh v. Schmidt, 369 F. Supp. 877, 880 (W.D. Wis. 1974).

[11] The court applied different standards to the censorship of prisoner mail than those subsequently set forth by the Supreme Court of the United States in Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, 42 U.S.L.W. 4606 (1974). We therefore vacate the injunctive order and remand the cause for further proceedings in the light of that case.


[13] Disposition



Judges Footnotes


[15] *fn* District Judge William E. Steckler of the Southern District of Indiana is sitting by designation.


Opinion Footnotes


[16] *fn** The plaintiff had been denied receipt of three paperback books ordered by him through the mail containing explicit descriptions of sexual acts and perversions, and described by defendants as pornographic.