Prison Legal News v. Ryan

• Decision Date: 08 July 2022
• Docket Number: 19-17449
• Citation: 39 F.4th 1121
• Parties: PRISON LEGAL NEWS, a project of: other Human Rights Defense Center, Plaintiff-Appellee, v. Charles L. RYAN, in his official capacity as Director of the Arizona Department of Corrections and in his individual capacity; Gail Rittenhouse, in her official capacity as Division Director, Support Services of the Arizona Department of Corrections and in her individual capacity; Jeff Hood, in his official capacity as Deputy Director of the Arizona Department of Corrections and in his individual capacity; Alf Olson, in his official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections and in his individual capacity; James Riggs, in his official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections and his individual capacity; Jamie Guzman, in her official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections, Defendants-Appellants, and Unknown Parties, named as: Does 1 to 20 (inclusive), Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.4th 1121

PRISON LEGAL NEWS, a project of: other Human Rights Defense Center, Plaintiff-Appellee,

v. Charles L. RYAN, in his official capacity as Director of the Arizona Department of Corrections and in his individual capacity; Gail Rittenhouse, in her official capacity as Division Director, Support Services of the Arizona Department of Corrections and in her individual capacity; Jeff Hood, in his official capacity as Deputy Director of the Arizona Department of Corrections and in his individual capacity; Alf Olson, in his official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections and in his individual capacity; James Riggs, in his official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections and his individual capacity; Jamie Guzman, in her official capacity as an employee of the Office of Publication Review of the Arizona Department of Corrections, Defendants-Appellants,andUnknown Parties, named as: Does 1 to 20 (inclusive), Defendant.

No. 19-17449

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 2021 San Francisco, California

Filed July 8, 2022

Michael E. Gottfried (argued) and Daniel P. Schaack, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellants.

Lisa Ells (argued), Sanford Jay Rosen, and Amy Xu, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California; Daniel Marshall, Human Rights Defense Center, Lake Worth, Florida; David J. Bodney and Michael A. DiGiacomo, Ballard Spahr LLP, Phoenix, Arizona; for Plaintiff-Appellee.

Before: Michael Daly Hawkins, Sidney R. Thomas, and Eric D. Miller, Circuit Judges.

MILLER, Circuit Judge:

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).

II

The starting point for our analysis is Turner v. Safley , 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), in which the Supreme Court established the framework by which we review the constitutionality of prison rules that impinge on inmates' constitutional rights. That framework is highly deferential, and it often requires us to uphold rules that, in contexts not involving prisons, would plainly violate the First Amendment.

In Turner , as in many previous cases, the Court recognized that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." 482 U.S. at 84, 107 S.Ct. 2254. Instead, an inmate retains rights "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Id. at 95, 107 S.Ct. 2254 (quoting Pell v. Procunier , 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ). At the same time, the Court recognized that the administration of prisons is a "difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government," and therefore "separation of powers concerns counsel a policy of judicial restraint." Id. at 84–85, 107 S.Ct. 2254.

Based on those considerations, the Court set forth a deferential, four-factor test for evaluating whether prison regulations are constitutional. Turner , 482 U.S. at 89–91, 107 S.Ct. 2254 ; see Beard v. Banks , 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). We have articulated those factors as follows:

(1) [W]hether there is a valid, rational connection between the policy and the legitimate governmental interest put forward to justify it; (2) whether there

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