Court rejects Arizona prison’s complete ban on explicit materials

NINTH CIRCUIT–A ban prohibiting Arizona prisoners from possessing any pictures depicting frontal nudity is unconstitutional, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled in early July.

In a unanimous decision the court held that the 1993 Maricopa County prison system’s ban on nude pinups is overbroad because it also prohibits socially acceptable images such as classical art, medical journals and National Geographic photos.

Prison inmate Jonathan Mauro challenged the ban in the federal district court of Arizona in 1993 after he was told that prison policy prevented him from receiving a subscription to Playboy.

Maricopa County argued that the policy was prompted by three important interests: safety of prisoners, rehabilitation of inmates convicted of sexual offenses and reduction of sexual harassment of female prison personnel. Larry Wendt, Deputy Chief of the Maricopa County Bureau, said that sexually explicit materials caused “a high incident [sic] of inmate/officer assaults” and “hurt jail security.”

Mauro argued that the policy was unconstitutional as applied to his Playboy subscription and as applied to all materials that depict frontal nudity.

The prison policy prohibits prisoners from possessing “sexually explicit” materials. It defines such materials as “personal photographs, drawings, and magazines and pictorials that show frontal nudity.” If a prisoner is found with such items, the items are confiscated and the prisoner is “written up” in a Disciplinary Action Report.

The district court granted summary judgment in the County’s favor, holding that the policy was reasonably related to legitimate penological interests. Mauro appealed the judgment.

The appeals court panel unanimously reversed the ruling. While the prison system’s concerns are justified, the court said, the prison policy is overbroad. “The blanket prohibition unnecessarily precludes prisoners’ access to materials fully protected by the First Amendment,” Judge Betty Binns Fletcher wrote for the court.

Daniel Struck, lawyer for Maricopa County Sheriff Joseph Arpaio and the county, said they would seek a rehearing and appeal to the Supreme Court if necessary. (Mauro v. Arpaio; Prisoner’s Counsel: Nicholas Hentoff, Phoenix)