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Prisoner loses claim over right to receive Playboy

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NINTH CIRCUIT--Prisoners do not have a First Amendment right to receive sexually explicit material, the U.S. Court of Appeals in…

NINTH CIRCUIT–Prisoners do not have a First Amendment right to receive sexually explicit material, the U.S. Court of Appeals in San Francisco (9th Cir.) held in mid-August. In denying the claim of a prisoner challenging an Arizona prison policy, the full court overturned an appellate panel’s decision that the prisoner’s rights were violated by the ban. The prisoner had protested a sheriff’s refusal to allow him to receive Playboy magazine.

The court, noting that prison inmates do not give up their federal constitutional rights while incarcerated, balanced the prisoner’s First Amendment interests against the penological interest a prison has in administration and reform of inmates.

Stating that much deference should be given to decisions by prison authorities, the court said it must consider whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward to justify it, and whether there are alternative means of exercising the right.

The court found that the explicit material ban was neutrally applied and reasonably related to protecting the safety of guards, based on previous harassment incidents that prison authorities linked to reactions to such material. The court found that prisoners could deploy alternative measures such as writing sexually explicit letters to third parties, reading articles, or looking at pictures of clothed females.

The court also noted that the impact of accommodating the asserted constitutional right would have a significant negative impact on the prison.

John Mauro filed a federal civil rights suit against Maricopa County and its sheriff after his request to receive Playboy magazine was denied while he was held in pretrial detention at the Maricopa jail in August 1995. The federal District Court in Phoenix held in favor of the county, but an appellate panel reversed that decision.

Maricopa County Sheriff Joseph Arpaio initiated the policy in August 1993 in response to complaints by female detention guards who reported that prisoners made rude comments comparing the anatomy of female guards to women in such magazines and openly masturbated while looking at pictures.

(Mauro v. Arpaio; Prisoner’s Counsel: Nicholas Hentoff, Phoenix)