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Virginia Prison Policy Prohibiting Secular, Non-Religious CDs Held Unconstitutional

On February 7, 2012, a U.S. District Court held that a Virginia Department of Corrections (VDOC) policy prohibiting prisoners from purchasing or possessing secular spoken-word compact discs was unconstitutional. The court invalidated the policy but also granted qualified immunity to the defendant prison officials.

Owen North, a friend of Virginia prisoner Shawn Goode, filed suit challenging the policy. As a 2010 Christmas gift, North had attempted to send Goode an 11-disc CD set entitled “Dylan Thomas: The Caedmon Collection.” Thomas is a “renowned poet and bard of the twentieth century.”

Prison officials informed North that he could not order and send the collection directly to Goode, but could send money to Goode so he could purchase the collection himself.
North then provided funds to Goode to buy the CD set. However, citing VDOC policy 803.2, which prohibited the purchase or possession of CDs with non-music or non-religious content, the VDOC refused to let Goode buy the collection.

North filed a civil rights complaint alleging violation of his rights under the First and Fourteenth Amendments. His first claim argued the VDOC policy lacked penological justification and violated the First Amendment. The district court agreed, holding the policy “bears no rational relationship to the stated governmental interests ... [of] security and rehabilitation of the inmates.”

The court said the VDOC may legitimately promulgate regulations that restrict the total amount of information that enters its prisons, but the policy at issue was suspect and not neutral as to the content of the information. If prison officials had prohibited all CDs based on some substantial governmental interest, the policy may have satisfied the neutrality standard.

The VDOC argued that allowing secular, non-music CDs would increase the amount of resources required to review CDs as a whole, and that it was trying to reduce “the volume of items coming into prisons.” The court, however, found that “a policy that favors the written format instead of the audio version of the same work militates against the goal of reducing the volume of items that enter the facilities.” As such, “a better policy” may be to favor CDs over more voluminous written works.

Having found that the first factor of Turner v. Safley, 482 U.S. 78 (1987) had not been satisfied, the district court found the policy unreasonable. As to the second Turner factor, the court wrote that Thomas’ “poems are nearly inconceivable without [his] voice,” and having Thomas’ voice read the poems, rather than Goode reading them aloud himself, was the form of expression in which North chose to communicate; thus, there was no alternative means. The court held that allowing secular, non-religious CDs would be more efficient due to the VDOC’s review process, since prison officials examine and approve CDs system-wide rather than publication-by-publication and prison-by-prison for books.

The district court concluded the VDOC policy violated both the First and Fourteenth Amendments. The court said that while it “may agree that religious, non-music CDs are consistent with the [VDOC’s] rehabilitation objectives, there are also a vast number of secular, non-music CDs consistent with rehabilitative goals.”

Although the court held the VDOC’s policy was unconstitutional and entered summary judgment in favor of North, qualified immunity protected the defendants from monetary damages. The court wrote that “in promulgating the challenged regulations, Defendants took only budgetary constraints into consideration and not necessarily the justifications of security and rehabilitation,” and while this “infringed on North’s right to communicate with Goode ... it does not appear that Defendants engaged in this course of action in knowing violation of clearly established law.”

On February 17, 2012, the district court awarded $47,159.56 to North in attorney fees and costs; he was represented by Charlottesville, Virginia attorneys Jeffrey E. Fogel and Steven D. Rosenfield. See: North v. Clarke, U.S.D.C. (E.D. Vir.), Case No. 3:11-cv-00211-JRS.

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Related legal case

North v. Clarke