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Arizona Court Grants Partial Summary Judgment to PLN in Censorship Suit

by Matt Clarke

On March 18, 2019, an Arizona federal district court granted in part a motion for summary judgment filed by Prison Legal News in a lawsuit over censorship by the Arizona Department of Corrections (ADC). The court ruled that the ADC had violated PLN’s due process rights by failing to provide notice of publication denials and an opportunity to appeal. It also held that ADC Director Charles L. Ryan and now-retired ADC Office of Publication Review employee Alf Olson were liable – Ryan for facilitating an unconstitutional policy, DO 914, and Olson for personally rejecting PLN publications. The court further wrote that “ADC’s policy prohibiting sexually explicit material violates the First Amendment on its face.”

PLN filed suit in 2015 after receiving notification from subscribers that the ADC was refusing to deliver certain issues of Prison Legal News. The then-current policy, promulgated in 2010, did not require notification to the publisher when a publication was denied. In 2016, the ADC amended DO 914 to require notification of publication denials and allow publishers an opportunity to appeal those decisions. In April 2017, the policy was again modified.

In its order granting in part and denying in part both parties’ cross-motions for summary judgment, the district court focused on the 2017 version of the ADC policy. It noted that while the policy prohibits only the receipt of “sexually explicit material,” it goes on to define that term so broadly as to include “all sexually related material.” The policy also bans any 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.”

Prison staff were provided with examples of “bright-line, unauthorized content” in publications, including visual or textual depictions or descriptions of nudity, masturbation, sexual representations of prisoners, and sexual contact with unwilling partners or children.

The district court noted that, in addition to PLN articles about court cases involving sexual abuse of prisoners by guards, the ADC policy had been used to prohibit or redact mainstream news articles on the persecution of the Yazidi people by ISIS, the “Me Too” movement, Maya Angelou’s book I Know Why the Caged Bird Sings, a New Yorker book review of a scholarly biography of Sigmund Freud, a Mayo Clinic newsletter containing a medical illustration of a hernia and self-portraits of former President George W. Bush.

The court held that the overbroad application of the policy was not rationally related to the ADC’s stated penological goals of assisting rehabilitation and treatment, reducing sexual harassment, and preventing a hostile environment for prisoners, staff and volunteers.

“The textual depictions of sex in Prison Legal News are informative and educational in nature – some are direct quotes from court opinions. As PLN correctly points out, these descriptions of facts are essential to understanding legal matters, especially ones that involve sexual harassment and/or assault in prison,” the district court stated. Further, the exclusions were arbitrary and inconsistent and thus irrational as the court could “discern no meaningful difference between the allowed text and redacted text – either in factual content or writing style.” Thus, the ADC had “acted unconstitutionally in censoring” four issues of PLN.

The court also narrowed PLN’s theories of liability to compensatory damages for frustration of mission. The parties reached a partial settlement in September 2019 with respect to PLN’s Fourteenth Amendment claims against several defendants and First and Fourteenth Amendment claims related to the ADC’s refusal to deliver one of PLN’s books. The issue of attorneys’ fees and costs in the case remains pending.

PLN is represented by Phoenix attorneys David J. Bodney and Michael N. DiGiacomo with Ballard Spahr LLP; by the San Francisco law firm of Rosen Bien Galvan & Grunfeld LLP; and by Human Rights Defense Center attorneys Dan Marshall and Masimba Mutamba. See: Prison Legal News v. Ryan, U.S.D.C. (D. Ariz.), Case No. 2:15-cv-02245-ROS. 

Related legal case

Prison Legal News v. Ryan