by David M. Reutter

On July 8, 2022, the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the grant of summary judgment to Prison Legal News (PLN) in a lawsuit alleging a censorship policy of the Arizona Department of Corrections (DOC) violated the First Amendment.

In 2010, DOC issued Order 914, which prohibited prisoners from receiving mail containing “sexually explicit material.” DOC then invoked that Order to redact portions of PLN. In a civil rights complaint filed in federal court for the District of Arizona under 42 U.S.C. § 1983, PLN alleged the Order violated the First Amendment both on its face and as applied to PLN. The district court agreed and granted summary judgment to PLN, entering a permanent injunction requiring DOC to amend its Order and allow distribution of the censored issues. [See: PLN, Mar. 2020, p.61.]

DOC appealed to the Ninth Circuit, which began its analysis by looking at the Order itself, deciding that it allows DOC to “restrict sexual content only to the extent that it describes or shows, in a sufficiently graphic manner” — the text of the Order reads “depicts” — “nudity or the specific acts specified in the order.”

The district court had agreed with PLN, that “[t]he mere mention of sex is … enough” to censor material under the Order. But the Court disagreed, noting that the “requirement that the sexual material be ‘explicit’ is confirmed by the operative verb in the definition: ‘depicts.’” On the other hand, the Court also wasn’t buying DOC’s argument that the Order bans only “sexually explicit material” that is “detrimental to the safe, secure and orderly operation of the facility.” Rather it said the district court was right to conclude that, under the Order, “all sexually explicit material is proscribed, without any need for an individual determination that it is detrimental to the operation of the facility.”

So with that basis established, the Court turned first to the facial challenge and decided the Order is almost constitutional — that is, it almost meets the first requirement laid out in Turner v. Safley, 482 U.S. 78 (1987), which is that prison restrictions must show “a valid, rational connection” to “the legitimate governmental interest put forward to justify it.”

The parties didn’t dispute that DOC’s penological interests were legitimate in limiting material that is “sexually explicit.” But the Order ran afoul by also prohibiting material “that may, could reasonably be anticipated to, could possibly 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, the Ninth Circuit concluded, is not rationally related to DOC’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,” the Court wrote. That section alone appeared to be responsible for the cases PLN identified where DOC “has censored medical information and other mundane images displaying women doing nothing that could be considered suggestive.” The Court, therefore, severed that section from the Order and found it violated the First Amendment. In all other respects, it found the Order to be consistent with the First Amendment.

Turning then to PLN’s as-applied challenges, the Court noted they first dealt with PLN’s October 2014 issue, which detailed “licentious passages” from a decision by the Tenth Circuit Court of Appeals. Despite the fact “the depiction of sex was arguably academic in nature,” it did not defeat the connection that banning the content deterred harassment of guards.

Next, the Court turned to the censorship of the April 2017 issue of PLN, based upon one sentence describing a New Mexico prison riot. Specifically, that report stated, “A dozen guards were taken hostage during the incident; some were beaten and raped.” The Ninth Circuit agreed with the district court that the redaction violated the First Amendment.

The Court then examined the censorship of PLN’s May 2017 issue, based on the partial redaction of four articles that describe instances of sexual and physical violence. The Court took issue with only one redaction and remanded to the district court to clarify its position on how that passage depicted sex.

Finally, as to the June 2017 issue of PLN, the Court took the redaction of passages with graphic depictions of child sexual assault was rationally related to DOC’s penological goals.

Thus the district court’s order was affirmed in part and reversed in part, and the case remanded for further proceedings. PLN was represented by attorney Daniel Marshall, Litigation Director for its non-profit publisher, the Human Rights Defense Center, as well as attorneys from Ballard Spahr LLP in Phoenix and Rosen Bien Galvan & Grunfeld LLP in San Francisco. See: Prison Legal News v. Ryan, 39 F.4th 1121 (9th Cir. 2022).

The case has now returned to the district court, and PLN will report developments as they are available. See: Prison Legal News v. Ryan, USDC (D. Ariz.), Case No. 2:15-cv-02245. 

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