Arizona prison can bar highly explicit adult magazines, federal court rules

Tuesday, November 30, 1999

Arizona prison officials did not violate the First Amendment rights of an inmate when they refused to deliver his copies of Penthouse magazine, a federal appeals court has ruled.

Inmate Raymond Ludwig Frost sued officials with the Arizona Department of Corrections in 1996 after they withheld several of his Penthouse and Gallery magazines.

Prison officials told Frost that the publications — all of which depicted sexual penetration — were confiscated because they threatened prison security.

According to prison officials, regulations against publications that show sexual penetration serve three interests: (1) insuring the safety of inmates and prison officers; (2) protecting female prison guards from harassment; and (3) preventing inmates from harassing and abusing others.

Frost sued in federal court, claiming that prison officials had violated his First Amendment rights. After a federal judge granted summary judgment to the prison officials, Frost appealed to the 9th U.S. Circuit Court of Appeals.

In its Nov. 23 opinion in Frost v. Symington, the 9th Circuit analyzed Frost's First Amendment claim under the U.S. Supreme Court's test for the constitutionality of prison regulations. In the 1987 Turner v. Safley decision, the high court said that a prison regulation which impinges on an inmate's First Amendment rights is constitutional as long as the regulation is reasonably related to a legitimate penological interest.

The U.S. Supreme Court instructed courts to examine four factors in determining whether a regulation meets the Turner standard:

  • Whether the governmental objective is legitimate and neutral, and whether the prison regulation is rationally related to that objective.
  • Whether alternate means of exercising the rights remain open to inmates.
  • The impact that accommodation of inmates' rights would have on guards, other inmates and prison resources.
  • The availability of obvious, easy alternatives to the challenged prison regulation.

The 9th Circuit said that prison officials could use “common sense” rather than scientific evidence to show that sexually explicit publications could cause some inmates to sexually harass others.

The 9th Circuit relied on a 1998 opinion by the U.S. Circuit Court of Appeals for the District of Columbia in Amatel v. Reno, which upheld a federal law banning sexually explicit publications in federal prisons. The 9th Circuit quoted from the D.C. Circuit decision, noting that “commonsense 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 9th Circuit determined that the Arizona prison officials' policy satisfied the Turner standard, concluding: “Because the prison's restriction on the receipt of images depicting sexual penetration dexterously parries Turner's various prongs, we conclude that the regulation does not unconstitutionally abridge Frost's First Amendment rights.”

A call placed to the attorney representing the Arizona prison officials was not returned.