Mauro v. Arpaio

• Decision Date: 01 September 1998
• Docket Number: No. 97-16021,97-16021
• Citation: 147 F.3d 1137
• Parties: 98 Cal. Daily Op. Serv. 5253, 98 Daily Journal D.A.R. 7399, 98 Daily Journal D.A.R. 9486 Jonathan D. MAURO, Plaintiff-Appellant, v. Joseph M. ARPAIO, Sheriff; Maricopa County, a political subdivision of the State of Arizona, Defendants-Appellees. Arizona Civil Liberties Union, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1137

147 F.3d 1137

98 Cal. Daily Op. Serv. 5253, 98 Daily Journal

D.A.R. 7399,

98 Daily Journal D.A.R. 9486

Jonathan D. MAURO, Plaintiff-Appellant, v. Joseph M. ARPAIO, Sheriff; Maricopa County, a political subdivision of the State of Arizona, Defendants-Appellees Arizona Civil Liberties Union, Intervenor.

No. 97-16021.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 17, 1998.

Decided July 2, 1998.

As Amended Sept. 1, 1998.

Nicholas S. Hentoff, Phoenix, Arizona, for plaintiff-appellant.

Daniel P. Struck, Jones, Skelton & Hochuli, Phoenix, Arizona, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-95-02729-RCB.

Before: FLETCHER, D.W. NELSON and BEEZER, Circuit Judges.

FLETCHER, Circuit Judge:

Jonathan Mauro appeals the district court's dismissal of his 42 U.S.C. § 1983 claim. The district court held that the Maricopa County prison system's policy prohibiting inmates from possessing "sexually explicit" materials does not violate the First Amendment. The County defines "sexually explicit" material as that containing any graphic representation of frontal nudity. The district court held that the policy was constitutional both as applied to Mauro's request for Playboy magazine and as applied to the receipt of any pictorial representations of frontal nudity. We have jurisdiction, 28 U.S.C. § 1291, and we reverse, holding that the policy is unconstitutionally overbroad.

I.

In August 1993 Maricopa County adopted a policy prohibiting inmates from possessing "sexually explicit" materials. Appellant Jonathan Mauro, a pretrial detainee, sought to receive a subscription to Playboy while housed at one of Maricopa's prisons and was prevented from doing so.

The policy defines sexually explicit materials as "personal photographs, drawings, and magazines and pictorials that show frontal nudity." If a prisoner is found in possession of such items, they are confiscated and the prisoner is "written up" in a Disciplinary Action Report. The "mail officer" has the responsibility for determining whether a particular piece of incoming mail contains sexually explicit material. The position is rotated among detention staff. Thus, different persons on different days will determine whether a particular piece of mail will be withheld.

Maricopa County asserts that its policy was prompted by three considerations: safety, rehabilitation of inmates, and reduction of sexual harassment of female prison personnel. The County produced testimonial evidence that banning sexually explicit materials was necessary to achieve these goals. Affidavits or depositions were submitted from a number of female prison guards; from Larry Wendt, Deputy Chief of the Maricopa Custody Bureau; and from Joseph Arpaio, Sheriff of Maricopa County. In addition, defendants answered written interrogatories and submitted internal prison memoranda regarding the policy. Female guards noted that such materials were used to intimidate and harass them. The Deputy Chief stated that sexually explicit materials caused "a higher incident [sic] of inmate/officers assaults" and "hurt jail security." A written explanation of the regulation stated that the regulation was guided in part by a desire to insure rehabilitation since a substantial percentage of inmates have been convicted of sexual offenses.

After discovery, both parties moved for summary judgment. Mauro had claimed that the policy violated his rights under several provisions of both the United States and Arizona Constitutions, but both parties stipulated that his federal First Amendment claim would be dispositive. Addressing only the First Amendment issue, the district court granted summary judgment in the County's favor, holding that the policy, though broad, was reasonably related to legitimate penological interests. The district court assessed the regulation both as it applied to Playboy and as it applied to any depiction of frontal nudity.

II.

We review de novo a grant of summary judgment. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 559, 139 L.Ed.2d 401 (1997).

Mauro asserts that the regulation in question is unconstitutional as applied to his Playboy subscription and as applied to all materials that depict frontal nudity. The County avers that: (i) its policy does not concern materials protected by the First Amendment; (ii) Mauro cannot bring a facial challenge to the regulation, and (iii) even if Mauro could bring a facial challenge, the regulation is constitutional as applied to Playboy and as applied to any material depicting frontal nudity.

A.

The regulation concerns more than just obscene materials, and thus purports to regulate material that is protected fully by the First Amendment. See Reno v. American Civil Liberties Union, --- U.S. ----, 117 S.Ct. 2329, 2347, 138 L.Ed.2d 874 (1997) (holding that sexual expression that is "indecent" is protected by the First Amendment); BSA, Inc. v. King County, 804 F.2d 1104, 1107 (9th Cir.1986) (holding that nudity alone is not enough to make material legally obscene).

Defendants assert that it is "doubtful" that the materials banned by its regulation even qualify as protected speech since the materials banned by the regulation "act as discriminatory conduct in the form of a hostile work environment." The County relies on Roberts v. U.S. Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), in which the Supreme Court held that where "potentially expressive activities ... produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection." Id. at 628, 104 S.Ct. 3244. The Court noted, for example, that an act of violence that has an expressive component is not protected by the First Amendment merely because the act has that expressive component.

In Roberts, the Court upheld the application of a Minnesota statute prohibiting gender discrimination in places of public accommodation to the practices of the Jaycees. Club members, who adopted a policy that women could join their organization but could not vote on club matters, claimed that Minnesota's anti-discrimination statute violated their right to associate. The Supreme Court rejected that argument, holding that Minnesota could regulate the specialized harms that flowed from such discriminatory conduct, even if members' rights to associate were impinged in the process.

We disagree that Roberts should be applied to cases, like the instant case, that involve pure speech. The County has pointed to no case and we have found none in which any court has applied this "special harms" theory beyond the facts of Roberts or the cases that involve regulation of violent behavior. Roberts has been cited exclusively in cases with very similar facts, i.e., where the rights of social club members to associate with each other run afoul of anti-discrimination laws. We decline Maricopa's invitation to expand the application of Roberts.

B.

Defendants next contend that Mauro is limited to challenging the regulation as it applies only to Playboy since Mauro conceded at deposition that he has tried only to receive a subscription to Playboy while in jail and his administrative grievance to jail authorities concerned only his Playboy subscription. Mauro may challenge the regulation as it relates to other materials only if he has standing to bring a facial overbreadth challenge to the regulation.

A facial overbreadth challenge may be brought to protect the First Amendment rights of those not before the court. The County correctly notes that the Supreme Court has held that "facial overbreadth adjudication is an exception to ... traditional rules of practice." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Broadrick describes a number of situations in which facial challenges are or are not appropriate. For example, a facial challenge is not appropriate when a plaintiff challenges an "ordinary criminal law." Id. at 613, 93 S.Ct. 2908. Also, when a statute regulates conduct that sometimes contains elements of expression, an overbreadth challenge is appropriate only when the overbreadth of a statute is real and substantial. Id. at 615, 93 S.Ct. 2908; see also United States v. Stansell, 847 F.2d 609, 613 (9th Cir.1988) (holding that "if a statute covers both conduct and speech ... the Supreme Court requires that 'the overbreadth of a statute must not only be real, but substantial as well' " (emphasis added)). On the other hand, facial challenges are particularly appropriate where a statute regulates "only spoken words," implicates the right of association, or acts as a prior restraint. Broadrick, 413 U.S. at 612-13, 93 S.Ct. 2908.

Maricopa County urges us to apply Broadrick to deny standing to Mauro to bring a facial challenge because Mauro has not shown that the regulation is substantially overbroad. The County contends that given the reality of prison life, it is "unlikely" that prisoners would request the type of art magazines and other materials that Mauro suggests would be banned by the regulation. First, we disagree that the regulation is not substantially overbroad. A wide variety of magazines and materials contain some frontal nudity, and pursuant to the regulation, inmates would be prevented from having any photograph, drawing or graphic that depicted frontal nudity. As noted by Mauro, this would include such magazines as National Geographic, medical journals, artistic works, and countless other materials. Second, although this is not a classic prior restraint case, as the regulation operates, inmates are prevented from receiving any materials that contain nudity, even those that cannot be legally withheld. If an overbreadth challenge is not allowed, inmates will be forced to endure an unending series of legal challenges to determine...