Inmates in Arizona prisons may be prohibited from receiving mail that contains “sexually explicit material or content that is detrimental to the safe, secure, and orderly operation of the facility.” While the Ninth Circuit agreed that some censorship of prisoners’ reading material is constitutional because it advances desirable “penological interests,” a 2010 Arizona State Department of Corrections (Department) order that allows prison officials to determine what is sexually explicit is, in some cases, too subjective, too broad, and without alternatives.

The plaintiff in this case is Prison Legal News (PLN), a monthly 72-page magazine published by the Human Rights Defense Center, a non-profit organization that ‘advocates on behalf of the human rights of people held in U.S. detention facilities.” Its website explains that it is “the foremost advocate on behalf of the free speech rights of publishers to communicate with prisoners and the right of prisoners to receive publication and communications from outside sources.”

PLN was ordered to redact several of its articles and issues because of their sexual content. One article described how an inmate was barred from filing a claim under the Eighth Amendment that forbids cruel and unusual punishment when she “engaged in sexual activity” with two prison guards. The descriptions of the sex were very graphic. After the issue was banned from distribution, PLN sued the Department because its Order 914, under which the ban occurred, violated the Frist Amendment. PLN lost in District Court, then appealed to the Ninth Circuit, which agreed that the Arizona order advanced some desirable penological goals, such as security and rehabilitation, but it had other problems.

Another incident, which described the rape of prison guards during a New Mexico riot, was redacted in violation of the First Amendment. Four additional articles had portions redacted because they graphically presented material about sexual and physical violence in various prisons, even including a description of sexual activity with a minor inmate.

The Ninth Circuit reversed the District Court’s ruling in part because the word may in the Arizona Order opened the door to unnecessary censorship by subjective prison employees. The district court also granted summary judgment to PLN but entered a permanent injunction that forbid distribution of the censored issues. The court found “most of the Order’s relevant prohibitions” align with the First Amendment, but not all of them.

Writing for a unanimous three-judge panel, Judge Eric D. Miller of the Ninth Circuit Court of Appeal reviewed the order of United States District Judge Roslyn O. Silver of the United States District Court for the District of Arizona. The Ninth Circuit on July 8 affirmed the Arizona opinion, reversed it in part, vacated it in part, and remanded it for further action in accord with their opinion.

Order 914 was created because female prison employees complained that sexually explicit materials in the hands of inmates led to their harassment, “created a hostile environment” and “undermined rehabilitative goals.” The Order describes forbidden materials such as depictions of nudity and physical contact with unclothed genitals and breasts. The Order also prohibits content that could “cause or encourage sexual excitement or arousal or hostile behaviors…” After it was enacted, the female staff said they felt “more comfortable.”

PLN had circulated more than 90 issues to inmates at more than 3,000 prisons without incident before 2014. The Department refused to deliver some of its issues that year because they said they contained sexually explicit material. Redactions in subsequent years led to legal challenges. One challenged Order 914 because it was not rationally related to the prison’s goals of rehabilitation, reduction of sexual harassment and prison security. The Department was ordered to amend Order 914 to “establish bright-line rules that narrowly define prohibited content in a manner consistent with the First Amendment.” The Department of Corrections appealed.

Judge Miller began his analysis with precedents that determined “prison walls do not form a barrier separating prison inmates from protections of the Constitution.” He discussed a four-part test that is now used to determine the constitutionality of prison free speech regulations. The test requires 1) a valid, rational connection between the policy and the government interest it is supposedly advancing, 2) a determination of whether there are any alternatives, 3) whether accommodating the First Amendment will negatively affect prison guards, and 4) whether the policy is an “exaggerated response.”

The court next applied the test to PLN’s constitutional challenge. Because this is a First Amendment case, Miller wrote, Order 914 can be invalidated if it is overbroad. He reviewed whether materials were banned for “mere mentions of sex” and asked for a functional definition of the word “explicit.”

The Ninth Circuit agreed with the Department that the word “explicit” and its express textual function…informs the order’s scope.” It therefore requires more than a mere mention of sex, and requires nudity or sexual acts to be shown in a “significantly graphic manner.” In addition, the opinion explained that the Department’s “rational interests” appropriately allow restrictions.

Then the opinion took a turn. Miller said, “One aspect of the order, however, goes too far.” He took issue with a section of the Order that said content could be banned if it could “result in or appear to be intended to cause or encourage sexual excitement or arousal or hostile behaviors, or that depicts sexually suggestive settings, poses or attire.” He found this section was “not rationally related to the Department’s interests” and was not connected to any of the Department’s interests. He said that the words “may cause sexual arousal or be suggestive of sex” are too dependent on the subjective judgment of the prison employee who reviews the mail. It “sweeps much more broadly than can be explained by (the Department’s) penological objectives,” Miller wrote.

The opinion then returned to the four-part test and ruled that the Department should prevail on all parts except whether sufficient alternatives to sexually explicit material were available. In conclusion, the court reversed the district court’s partial summary judgment claim for PLN’s First Amendment issues with the exception of two issues where redaction was appropriate.

This case again illustrated the difficulty of defining sexually explicit materials, albeit in a prison environment. It shows that the courts have not really clarified what pornography is and whether it can be banned. The Ninth Circuit’s decision is reminiscent of Supreme Court Justice Potter Stewart’s famous line that he could not define obscenity but he would “know it when I see it.” Defining it is particularly tough in prisons, where seeing it could disrupt safe and orderly operations.