Second Circuit Upholds Connecticut Prison Porn Ban, Sets Up Circuit Split Over “Vagueness” Test
by Jacob Barrett
On October 3, 2022, the U.S. Supreme Court declined to issue a writ of certiorari to hear an appeal by a group of Connecticut prisoners, who lost a challenge to the prohibition on sexually explicit material by the state Department of Corrections (DOC). See: Reynolds v. Quiros, 143 S. Ct. 199 (2022). That left to stand a decision reached by the U.S. Court of Appeals for the Second Circuit on February 3, 2022, affirming that the prisoners have no First Amendment right to possess such material.
Importantly, that ruling found DOC’s ban on the material passed the four-factor test for reasonableness in restricting First Amendment rights laid out in Turner v. Safely, 482 US 78 (1987). The Second Circuit also said that the prisoners’ primary challenge to the ban – that it is unconstitutionally vague – involves a separate analysis, but one that is applicable only to disciplinary sanctions. In that, the Court acknowledged it was siding with the Third and Ninth Circuits while rejecting different conclusions reached in other circuits.
The case was filed by seven DOC prisoners in federal court for the District of Connecticut: Richard Reynolds, John Vivo, Kenya Brown, Dwight G. Pink, Andres R. Sosa, Akov Ortiz and Victor Smalls. They challenged DOC policy strictly limiting a prisoner’s ability to possess and access sexually explicit material. The prisoners claimed a violation of their First Amendment rights because the only portion of the policy allowing sexually explicit material – that which is “literary, artistic, educational or scientific in nature” – was unconstitutionally vague and failed to provide notice of the “scope of the prohibited material.”
After a five-day bench trial, the district court found for Defendants on March 9, 2020. Aided by attorneys with Day Pitney LLP in Stamford, Plaintiffs appealed.
The Second Circuit began by evaluating the policy under Turner. Was it rationally related to a legitimate penological interest? Yes, the Court said, agreeing that DOC had an interest in “promoting a non-hostile work environment for corrections staff, enhancing the safety and security of DOC facilities, and facilitating the rehabilitation of sex offenders.”
So were there alternative avenues of expression? Or, as the Court put it, given “that the propensity for violence is increased by the possession of such photos,” were there other avenues “available for the exercise of inmate-on-inmate sexual violence”? The question answers itself. So the Court moved on to the third Turner factor.
That is “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Here, the Court looked to DOC’s previous, less restrictive policy, accepting prison officials’ assertion that it “resulted in sexually explicit pictorial materials being rampantly displayed and possessed by inmates, which had a ‘ripple effect’ on staff in terms of the work environment, as well as on staff and inmates as it related to safety and security concerns in the prison facilities and the rehabilitation of sex offender inmates.”
Finally, the Court considered the last factor, whether the policy represented the least restrictive means of accomplishing the prison’s goals. Here, the prisoners offered an alternative – allowing them to possess depictions of nudity but not hard-core pornography. However, the Court said that “this and other alternatives were explicitly considered and rejected by the DOC committee after ‘[s]ubstantial thought and discussion’ (including a review of two-tiered approaches by other states) that led to the conclusion that ‘any form of a divided policy’ was not a viable alternative.”
The Court then turned to the vagueness challenge. The prisoners argued that even if it passed the Turner test, the policy was still unconstitutional for encouraging “arbitrary and erratic behavior on the part of officials charged with enforcing the rule.” But DOC waived aside that argument, insisting the vagueness test applied only to criminal statutes, or in prisons to disciplinary rules. While noting that other circuits had rejected this idea, the Court agreed, adding that both the Third and Ninth Circuits had adopted similar views.
“[A]lthough we recognize that there may be some overlap between the inquiry under the Turner test and aspects of a vagueness analysis,” the Court concluded, “it is nonetheless possible to imagine a situation where a prison regulation could be found to withstand a First Amendment challenge under the Turner factors, but still run afoul of the Due Process Clause because one or more of its terms is unconstitutionally vague.”
Just to be sure, though, the Court examined the language of DOC’s policy and found it sufficiently clear for an ordinary person to understand. Anyway, perfect clarity is not a requirement, the Court added, even in the case the seven prisoners presented – with no disciplinary charges involved and prisoners required to seek prior approval for material before having it sent in. Accordingly, the district court’s judgment was affirmed. See: Reynolds v. Quiros, 25 F4th 72 (2nd Cir. 2022).