PRISON LEGAL NEWS V. CHARLES RYAN, No. 19-17449 (9th Cir. 2022)
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The Arizona Department of Corrections issued Order 914, under which the Department may prohibit inmates from receiving mail containing “sexually explicit material.” The Department invoked the order to redact several issues of Prison Legal News, a monthly journal for prison inmates that covers developments in the criminal justice system. The publisher of Prison Legal News sued the Department under 42 U.S.C. Section 1983, arguing that Order 914 violates the First Amendment on its face and as applied to Prison Legal News. The district court granted summary judgment to the publisher and entered a permanent injunction requiring the Department to amend its order and allow distribution of the issues that had been censored.
The Ninth Circuit reversed in part, affirmed in part, vacated the permanent injunction in part, and remanded for further proceedings. The court concluded that most of the order’s relevant prohibitions are facially constitutional under the First Amendment and that most of the as-applied challenges lack merit.
The court held that the penological interests in jail security and rehabilitation were legitimate and the order was neutral in the sense relevant to the analysis set forth in Turner v. Safley, 482 U.S. 78 (1987). The court determined, however, that one aspect of the order swept more broadly than could be explained by the Department’s penological objectives: section 1.2.17’s ban on content that “may” cause sexual arousal or be suggestive of sex. That provision was not rationally related to the Department’s interests. As to one portion of the May 2017 issue, the court vacated the district court’s judgment and remanded for the Department.
Court Description: Prisoner Civil Rights. The panel (1) affirmed in part and reversed in part the district court’s summary judgment in favor of the publisher of Prison Legal News; and (2) vacated in part the district court’s permanent injunction requiring distribution of certain previously censored issues of Prison Legal News’ monthly journal in an action brought pursuant to 42 U.S.C. § 1983 challenging, on its face and as-applied, Arizona Department of Corrections’ Order 914, under which the Department may prohibit inmates from receiving mail containing “sexually explicit material.” The panel first considered PLN’s facial challenge to the order. The panel held that the penological interests in jail security and rehabilitation were legitimate and the order was neutral in the sense relevant to the analysis set forth in Turner v. Safley, 482 U.S. 78 (1987). The panel held that properly construed, the order banned only content that graphically depicted nudity or sex acts. And so interpreted, the order was rationally related to its purposes of protecting the safety of guards and reducing sexual harassment. Because PLN failed to point to viable alternatives, the order’s prohibition on sexually explicit materials was not an exaggerated response to prison concerns. The panel determined, however, that one aspect of the order swept more broadly than could be explained by the Department’s penological objectives: section 1.2.17’s ban 4 PRISON LEGAL NEWS V. RYAN on content that “may” cause sexual arousal or be suggestive of sex. That provision was not rationally related to the Department’s interests; there was 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. Nor did any record evidence support such a connection. Turning to PLN’s as-applied challenges, the panel held that most of the Department’s redactions of the Prison Legal News issues satisfied Turner and abided by the First Amendment. The panel reversed the grant of summary judgment on PLN’s as-applied challenges, except with respect to the April 2017 and May 2017 issues. The panel agreed with the district court that the April 2017 issue did not contain sexually explicit material within the meaning of the order. As to one portion of the May 2017 issue, the panel vacated the district court’s judgment and remanded for the Department to clarify the basis for the redaction, and if necessary, for the district court to consider whether alternate bases for the redaction applied.
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