Appeals court: No porn for federal prisoners

Friday, September 18, 1998


A federal law that prohibits the Federal Bureau of Prisons from distributing sexually explicit publications to prisoners does not violate inmates' First Amendment rights, an appeals court ruled this week.


A three-judge panel of the U.S. Circuit Court of Appeals in Washington D.C., decided 2-1 that Congress had a “legitimate and neutral” goal in banning pornography to rehabilitate prisoners.


In 1996, Congress passed the Ensign Amendment, named after its sponsor Rep. John Ensign, R-Nev. Ensign introduced his measure as an amendment to a comprehensive budget bill.


Ensign's amendment prohibits the Federal Bureau of Prisoners from using federal funds to “distribute or make available” to prisoners “commercially published information or material” known to be “sexually explicit or featuring nudity.”


Shortly after the law was passed, three prisoners and the publishers of Playboy and Penthouse magazines challenged the law on First Amendment grounds in three separate lawsuits, which were later consolidated. The plaintiffs argued the law was an overly broad restriction on First Amendment free-speech rights and was unconstitutionally vague.


In August 1997, federal District Court Judge Stanley Sporkin struck down the law, finding that it was a “content-based statute with a sole focus on the sexual nature of the publications it seeks to prohibit.” Sporkin did not address the vagueness arguments.


Sporkin reasoned that U.S. Supreme Court case law mandated that government restrictions on prisoner publications must meet a general “reasonableness” test. The first prong of this test is that the government objective for the restriction must be “legitimate and neutral.”


Sporkin criticized Ensign's amendment as a “hastily drafted statute tagged on to a massive budget bill” and criticized Congress for failing to consider the constitutional concerns raised by such legislation.


The appeals court disagreed in Amatel v. Reno. The majority wrote that the government, within its own institutions, “may attach sanctions or … exclude speech that threatens its goals — even if those goals include promotion of particular values. … We think the government could rationally have seen a connection between pornography and rehabilitative values.


“Common sense tells us that prisoners are more likely to develop the now-missing self-control and respect for others if prevented from poring over pictures that are themselves degrading and disrespectful,” the court majority determined.


The appeals court removed the district court's permanent injunction and sent the case back to Sporkin to examine the plaintiffs' vagueness challenge.


Circuit Judge Patricia Wald dissented, calling the majority's decision “an unwise and arbitrary precedent that runs contrary to prior case law.”


Wald warned her colleagues that “whatever sentiments we might hold regarding prisoners for the crimes they have committed, these sentiments must not infect our determination of the prisoners' constitutional rights.”


Wald wrote that the assertion of rehabilitation as the reason for limiting prisoners' First Amendment rights is “particularly disconcerting in its potential for abuse.”


Ensign applauded the majority's decision, saying: “When you read this [opinion], two words stand out — common sense. Giving sexual predators pornography is the opposite of common sense if you want them rehabilitated. Criminals don't have the same First Amendment rights that you and I do.”


Bruce Taylor, president and chief counsel for the National Law Center for Children and Families, also agreed with the decision. Taylor, who wrote a friend-of-the-court brief filed on the side of the government, said: “This law does restrict prisoners' access to pornography; however, there is no constitutional right to receive porn in prison.”


Jodie Kelley, the lead attorney challenging the legislation, said: “We are really disappointed with this opinion. The majority opinion misinterprets U.S. Supreme Court precedent. A most astonishing fact about the opinion is that the majority imposes its own judgments on what is appropriate reading material.”


Kelley said her clients will appeal the ruling to the U.S. Supreme Court. She said a decision had not yet been made whether to first seek full-panel review before the appeals court.


— The Associated Press contributed to this report.