Prison Legal News v. Charles L. Ryan, et al.

Phoenix, Arizona civil rights lawyers represented Plaintiff, who sued Defendants on First Amendment violation theories.



In 2010, 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. § 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

Department appeals. We conclude 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. We reverse in part, affirm in part, vacate the

permanent injunction in part, and remand for further

proceedings.



I



Before 2010, the Department imposed few restrictions

on inmates' receipt of sexually oriented writings and images.

But according to the Department, prison staff—and female

employees in particular—complained that inmates often

used sexually explicit images to harass them. The presence

of such materials, the Department says, "created a hostile

environment for inmates, staff, and volunteers.” The

Department also says that such materials undermined its

rehabilitative goals for inmates—especially those convicted

of sex crimes—by frustrating its efforts to impose upon them

"society's norms and respect for rules and boundaries.” To

address these concerns, the Department issued Order 914.

The Department has periodically amended the order, but

except as otherwise noted, this case involves the version

effective April 7, 2017.



Order 914 prohibits inmates from sending, receiving, or

possessing "sexually explicit material or content that is

detrimental to the safe, secure, and orderly operation of the

facility.” See generally Jones v. Slade, 23 F.4th 1124, 1130–

31 (9th Cir. 2022) (describing Order 914). It defines

"sexually explicit material” as:



Any publication, drawing, photograph, film,

negative, motion picture, figure, object,

novelty device, recording, transcription, or

any book, leaflet, catalog, pamphlet,

magazine, booklet or other item, the cover or

contents of which pictorially or textually

depicts nudity of either gender, or

homosexual, heterosexual, or auto-erotic sex

acts including fellatio, cunnilingus,

masturbation, sadism, sado-masochism,

bondage, bestiality, excretory functions,

sexual activity involving children, an

unwilling participant, or the participant who

is the subject of coercion.



The order includes a non-exhaustive list of examples of

prohibited content, including "instructions regarding the

function of locks and/or security devices,” "instructions for

the brewing of alcoholic beverages,” "instructions regarding

the sale, manufacture, concealment, or construction of

ammunition, guns, rifles, bombs, [or] explosives,” and

instructions on "methods of escape and/or eluding capture.”

As relevant here, the list also includes publications that

"depict nudity of either gender” or "depict . . . [p]hysical

contact by another person with a person's unclothed genitals,

pubic area, buttocks or, if such person is a female, breast.”

Another item in the list, section 1.2.17, imposes a broader

prohibition that covers:



Content in publications, photographs,

drawings, or in any type of image or text, that

may, could reasonably be anticipated to,

could reasonably result in, is or appears to be

intended to cause or encourage sexual

excitement or arousal or hostile behaviors, or

that depicts sexually suggestive settings,

poses or attire, and/or depicts sexual

representations of inmates, correctional

personnel, law enforcement, military,

medical/mental health staff, programming

staff, teachers or clergy.



But the order exempts any publication containing otherwise-

prohibited material if it is "commonly considered to

constitute a well-known and widely recognized religious . . .

or literary work,” as well any publication that quotes from

judicial decisions "if the unauthorized content is reasonably

necessary to understand the fundamental legal issue.”

The Department claims that "[s]ince those regulations

were adopted, staff ha[ve] reported that they generally feel

more comfortable, especially female staff, because they are

not exposed to unwanted images and text of graphic, explicit

sexual content.”



Inmates at more than 3,000 prisons, including those

operated by the Department, subscribe to Prison Legal

News. Before 2014, the Department allowed the circulation

of more than 90 issues of Prison Legal News without

incident. But that year, the Department refused to deliver

several issues because, it said, they contained sexually

explicit material. The Department later reversed that

decision except with respect to one article in one issue. In

2017, the Department redacted articles in three other issues

for similar reasons.



Prison Legal News (PLN), publisher of the eponymous

journal, brought this action against Department officers and

directors in their official and individual capacities, arguing

that Order 914 violates the First Amendment both on its face

and as applied to Prison Legal News. On cross-motions for

summary judgment, the district court held that the order "is

not rationally related to [the Department's] stated goals of

rehabilitation, reduction of sexual harassment, and prison

security” and is therefore unconstitutional on its face. The

court also held that the Department had acted

unconstitutionally in censoring the four issues.



Thereafter, the district court granted a permanent

injunction requiring the Department to amend Order 914 "to

establish bright-line rules that narrowly define prohibited

content in a manner consistent with the First Amendment;

limit the discretion available to [the Department's]

employees and agents; and ensure consistency in the

exclusion of sexually explicit material.” It also required the

Department to "distribute complete copies of the previously

censored October 2014, April 2017, May 2017, and June

2017 issues of Prison Legal News” to inmate subscribers.



The Department appeals. We review the district court's

grant of summary judgment de novo. See Colwell v.

Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).

We reverse the district court’s partial grant of summary

judgment on PLN’s facial First Amendment claims, except

with respect to the portion of section 1.2.17 discussed above,

as to which we affirm. We reverse the grant of summary

judgment on PLN’s as-applied challenges, except with

respect to the April 2017 and May 2017 issues. As to those

challenges, we affirm the district court’s judgment on the

April 2017 redaction and vacate the district court’s judgment

on the May 2017 redaction and remand for further

consideration. Accordingly, we vacate the district court’s

order entering a permanent injunction except as to the April

2017 redaction and remand for further proceedings

consistent with this opinion.



AFFIRMED in part, REVERSED in part,

VACATED in part, and REMANDED