Prison Porn Case Closed in Seventh Circuit

     CHICAGO (CN) – Inmates have no First Amendment right to receive porn magazines in prison, the Seventh Circuit ruled, though it urged Illinois to review the costly ban.
     Tobias Payton, an inmate at Illinois’ Stateville prison, ordered a number of pornographic magazines with names such as “Bootylicious,” “Black Video Illustrated,” “Players Nasty,” “Black Tail,” “Tight” and “Naughty Neighbors.”
     These magazines contain mostly photographs of naked or almost-naked women, but also some photos portraying sexual acts.
     “We doubt that they would be classified as obscene,” the Dec. 1 opinion says.
     Stateville staff confiscated the magazines pursuant to its ban on “sexually explicit material that by its nature or content poses a threat to security, good order, or discipline or it facilitates criminal activity,” or is “otherwise detrimental to security, good order, rehabilitation, or discipline or it might facilitate criminal activity or be detrimental to mental health.”
     Payton sued prison staff members under the First Amendment, but a federal judge dismissed the action, on the basis of a statement by a former Stateville warden, Marcus Hardy, who said that nude photographs pose a danger in prison because their sharing or theft often sparks inmate-on-inmate violence.
     Hardy also said female employees at the prison are more often objectified and harassed by inmates when inmates have access to pornographic images.
     “In my experience, this has included, but not been limited to Stateville having to address instances of inmates openly pleasuring themselves [i.e., masturbating] before female correctional officers during rounds,” Hardy added.
     The Seventh Circuit affirmed the ruling Tuesday, finding that Payton offered no evidence to refute the ex-warden’s statement.
     Payton “argues that the real reason for the prison’s policy is that the staff dislikes pornography,” Judge Richard Posner said, writing for the three-judge panel. “This strikes us as an implausible generalization, though doubtless some staff (and not only the women) do dislike or disapprove of pornography; in any event, he provides no evidence.”
     The court also found it “impractical” for prison staff to read every issue of every magazine rather than adding the magazine to a censored list.
     “That said, we think it important to note for future reference that the ex-warden’s statement, though plausible and thus sufficient for judgment given the absence of countervailing evidence, is not ironclad,” Posner continued.
     The panel noted that Hardy’s statement is based on impression rather than data, and it remains unclear whether allowing nude photographs in prison would cause a nontrivial increase in violence.
     “And as for inmates masturbating in front of female staff, it seems on the one hand a practice that male inmates can be expected to engage in even if they have no access to nude photographs and on the other a matter calling for swift punishment of the offenders,” Posner said.
     The court encouraged the state to conduct a scientific study of the prison’s pornography policy, noting that the current policy is costly to enforce.
     “Stateville’s policy may be ineffectual – and it is costly,” the five-page opinion states. “Staff is deflected to skimming boatloads of pornographic magazines. Prisoners are denied access to reading material that would lighten slightly the burden of imprisonment in a maximum-security prison and might reduce rather than increase disciplinary problems at the prison. The Illinois Department of Corrections, which owns and administers Illinois state prisons, might be well advised to study Stateville’s pornography policy – and with an open mind.”

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