Amatel v. Reno
| Decision Date | 12 August 1997 |
| Docket Number | Civil Action No. 96-2790(SS).,Civil Action No. 97-00475(SS).,Civil Action No. 96-2774(SS). |
| Citation | 975 F.Supp. 365 |
| Parties | Joseph AMATEL, et al., Plaintiffs, v. Janet RENO, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Joseph Amatel, Pro Se, Marjorie Lynn Rifkin, Margaret Winter, Nat'l. Prison Project of the ACLU Foundation, Washington, DC, for Joseph Amatel.
Lee Alphonso Moore, Pro Se, Marjorie Lynn Rifkin, Margaret Winter, Nat'l. Prison Project of the ACLU Foundation, Ann Mary Kappler, Jenner & Block, for Lee Alphonso Moore.
Daniel J. Levitan, Pro Se.
Vincent Morgan Garvey, David Otto Buchholz, U.S. Dept. of Justice, Washington, DC, for Defendants.
These consolidated cases involve First Amendment challenges to Section 614 of the Omnibus Appropriations Act of 1997, Pub.L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996), which prohibits the Federal Bureau of Prisons ("BOP") from using federal funds to "distribute or make available" to prisoners "commercially published information or material" known to be "sexually explicit or featur[ing] nudity." This provision, which was introduced by Representative John Ensign, has come to be known as the "Ensign Amendment."
Plaintiffs Joseph Amatel, Lee Alphonso Moore, and Daniel J. Levitan ("prisoner Plaintiffs") are incarcerated in federal prisons. Since enactment of the Ensign Amendment, BOP staff have rejected several publications addressed to prisoner Plaintiffs. Plaintiffs Playboy Enterprises, Inc., General Media Communications and Periodical and Book Association of America, Inc. ("publisher Plaintiffs") publish or represent publishers of periodicals and other publications containing material that would be banned by the Ensign Amendment and its new implementing regulation. The publisher Plaintiffs have been notified that from now on their publications will not be delivered to inmates, and their publications will be routinely rejected by the BOP.
This matter is now before the Court on the Plaintiffs' motion for a preliminary/permanent injunction1 to prevent enforcement of the Ensign Amendment, and Defendant's opposition thereto. The Court heard oral argument in this matter on June 25, 1997. For the reasons stated below, the Court finds that the Ensign Amendment, on its face, violates the First Amendment. Accordingly, the Court grants Plaintiffs' motion for permanent injunctive relief.
Federal prison authorities have long monitored and controlled the distribution of publications inside prison walls. Distribution of publications in federal prisons is controlled pursuant to regulations originally issued by the BOP in 1979 ("1979 regulations"). 28 C.F.R. § 540.71. The 1979 regulations give wardens the authority to keep prisoners from receiving publications only if the wardens determine that the material is "detrimental to the security, good order, or discipline of the institution or if [the publication] might facilitate criminal activity." 28 C.F.R. § 540.71(b). The regulations also specifically forbid the rejection of "a publication solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant." Id.
The policy does not permit wardens to create a list of prohibited publications. Rather, each individual issue has to be reviewed by a warden prior to rejection. 28 C.F.R. § 540.71(c). While sexually explicit material can be rejected at a wardens discretion, the Program Statement expressly notes that sexually explicit heterosexual material will "ordinarily be admitted."2 The Supreme Court upheld the constitutionality of the 1979 regulations in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).3
On September 30, 1996, President Clinton signed into law the Omnibus Budget Act of Fiscal Year 1997, P.L. 104-208, 110 Stat. 3009. Section 614 of the Act, known as the Ensign Amendment, states in its entirety:
None of the funds made available in this Act to the Federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the Federal official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity.
Pub.L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996).
The Ensign Amendment was enacted as an attachment to a comprehensive budgetary bill. No hearings were held by Congress in enacting the Ensign Amendments and no committee report was issued. No discussion of the statute appears in any Conference Report. The only statements made on the floor of the House regarding the Amendment reflect a desire on the part of the sponsors to keep sexually explicit material away from prisoners.4 There is no record that any committee or the full Congress ever discussed how the banning of sexually explicit materials, in particular, will advance rehabilitative goals, or whether it is necessary to prevent distribution of such materials to all prisoners. Neither did Congress make any finding that rehabilitative goals were not being met by the 1979 regulations.
On November 6, 1996, the Federal Bureau of Prisons ("BOP") issued an interim rule that enacted 28 C.F.R. § 540.72, a regulation implementing the Amendment. Despite the new regulation, the 1979 regulations still remain in place except where they are inconsistent with the Ensign Amendment. See 28 C.F.R. § 540.70.
The new regulation specifically enforces the Ensign Amendment, requiring wardens to reject for distribution to any prisoner any sexually explicit publication or publication that "features" nudity. 28 C.F.R. § 540.72. Section (b) of the regulation defines the operative terms:
(1) "Commercially published information or material" means any book, booklet, pamphlet. magazine, periodical, newsletter, or similar document, including stationery and greeting cards, published by any individual, organization, company, or corporation which is distributed or made available through any means or media for a commercial purpose. This definition includes any portion extracted, photocopied, or clipped from such items.
(2) "Nudity" means a pictorial depiction where genitalia or female breasts are exposed.
(3) "Features" means the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues. Publications containing nudity illustrative of medical, educational, or anthropological content may be excluded from this definition.
(4) "Sexually explicit" means a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation.
28 C.F.R. § 540.72(b). If the warden of an institution decides to reject a publication, the institution must give written notice to both the publisher or sender of the rejected materials, and the inmate-addressee. While an appeals process is provided for, the violative publications are sent back immediately. Inmates may not view the materials, even for the purpose of determining whether to appeal. 28 C.F.R. § 540.72(a).
As the Supreme Court held in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), the appropriate standard of review for a statute or regulation limiting distribution in prisons of incoming publications is the Turner v. Safley reasonableness test. Such statutes and regulations are "valid if [they are] reasonably related to legitimate penological interests." Turner, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). In order to make this determination, the Supreme Court has "identified several factors that are relevant to, and that serve to channel, the reasonableness inquiry." Thornburgh, 490 U.S. at 414, 109 S.Ct. at 1882. The first Turner factor, which must be satisfied, is whether "the governmental objective underlying the [statute or] regulations at issue is legitimate and neutral, and [whether] the [statute or] regulations are rationally related to their objective." Id. Only if the first factor is satisfied does the Court consider the other three factors: "whether there are alternative means of exercising the right that remain open to prison inmates," id. at 417, 109 S.Ct. at 1884; "the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison," id. at 418, 109 S.Ct. at 1884; and "the existence of obvious, easy alternatives." Id.
Legitimate penological interest
The legitimate penological interest posited by the Government for the Ensign Amendment and the interim rule is "rehabilitation" of prisoners, In Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974), the Supreme Court listed as "substantial" government interests, "security, order, and rehabilitation." Martinez was overruled in part by Thornburgh, supra at 413-14, 109 S.Ct. at 1881-82, holding that "strict scrutiny" analysis should not be applied to all prison regulations affecting First Amendment rights. Nonetheless, the Thornburgh decision did not have any bearing on the holding of the Court in Martinez that rehabilitation is a "substantial," and by extension. "legitimate" government penological interest. Accordingly, "rehabilitation" is a "legitimate" penological interest for the purpose of the Turner analysis.
Addressing the neutrality prong of Turner, the Court in Thornburgh found it to be a "close[]" question whether even the 1979 regulations were neutral. Thornburgh, supra at 415, 109 S.Ct. at 1882. The Court stated:
On their face, the regulations distinguish between rejection of a publication "solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant" (prohibited) and rejection...
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Amatel v. Reno
...granting plaintiffs' motion for summary judgment (which, in fact, they never made)--and permanently enjoined its enforcement. 975 F.Supp. 365, 370 (D.D.C.1997). * * Both sides agree that Safley sets out the appropriate framework for reviewing government regulation of prisons. 3 But before b......
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