Utah Legislature limits inmate access to sexually explicit material

Tuesday, March 7, 2000

The Utah Legislature has passed a measure to limit inmates’ access to
commercially published material featuring nudity or “sexually explicit conduct,”
such as Playboy and Penthouse.

The measure, Senate Bill 263, cleared the Senate on February 25 and the House
on February 28.

The bill provides that “state funds may not be used to distribute or make
available any commercially published information or material to an offender when
the state employee, contractor, or private provider who has the authority to
expend the funds knows that the commercially published information or material
is sexually explicit or features nudity.”

The bill broadly defines “commercially published information or material” to
include any book, booklet, magazine, videotape or audiotape that is distributed
for a commercial purpose. The definition also extends to any “photocopy,
clipping, or electronically created copy” of the above-mentioned materials.

The measure empowers the Utah Department of Corrections to establish an
administrative process for the rejection of commercially published information
or material sent to inmates. The bill also provides that “there is no right to
judicial review of the department’s decision under this section to reject
material for distribution.”

Brian Barnard, a First Amendment attorney who practices in Utah, says the
measure is “far too broad.”

“This measure is a severe restriction on the First Amendment rights of
inmates,” Barnard said.

He also said that he considers the measure to have been enacted in direct
response to litigation he has filed over the censorship of inmate mail at the
Salt Lake County and San Juan County jail systems.

Barnard pointed out several flaws he sees in the legislation. “First of all,
the provision for no judicial review simply forgets something called the
Constitution,” he said.

He also said the proposed statute “leaves too much discretion to the
Department of Corrections to either accept or reject publications.”

A provision in the bill provides that the department “may by rule … exclude
from the definition [of commercially published information or material] …
information or material containing nudity that is illustrative of medical,
educational, or anthropological content.”

“This is an example of unbridled discretion being placed in the hands of
government officials,” Barnard said.

Calls placed to the sponsor of the bill, R. Mont. Evans, were not returned.

The measure is awaiting the governor’s signature. In Utah, the governor has
20 days after the end of the legislative session to sign a bill. The session
ended on March 1.


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