Metropolitan News-Enterprise


Tuesday, April 12, 2005


Page 1


Court of Appeal Upholds Rule Against Pornography in Prisons


By KENNETH OFGANG, Staff Writer/Appellate Courts


A California Department of Corrections policy prohibiting inmates from possessing materials showing male or female frontal nudity does not violate the First Amendment, the Fourth District Court of Appeal ruled yesterday.

Div. One affirmed San Diego Superior Court Judge Joan M. Lewis’ order denying a petition for writ of mandate in which an inmate at Richard J. Donovan Correctional Facility challenged the ban, which went into effect in 2002. The petitioner, Stephen Snow, sought relief after his magazine pictures of nude women were confiscated.

Among the exhibits attached to Snow’s petition, which he filed in pro per,  were pictures of women with exposed breasts, an art photograph of a nude woman, and an issue of a pornographic magazine.

Measure Defended

The department defended the rule as a legitimate measure to protect female correctional officers against harassment, to steer clear of having sexually explicit materials become items of barter, and to avoid “anatomical comparisons [that] could lead to fights between inmates.”

Attached to Snow’s reply was a Time magazine article containing a photograph of a painting of a nude woman.

The judge concluded that the ban was reasonably related to a legitimate penological interest, reasoning that officials had shown a connection between inmate possession of pornography on the one hand and sexual harassment and intimidation of female employees and fighting among inmates on the other, that the policy was “not an exaggerated response,” and that inmate freedom of expression was not unreasonably restricted.

Justice Terry O’Rourke, writing for the Court of Appeal, said the trial judge was correct. “Many cases have found that prison safety and security are legitimate penological interests,” the justice wrote.

The regulation also meets the constitutional requirements of neutrality and rationality, he said, adding that Snow failed to present sufficient evidence “to refute a common-sense connection between sexually explicit images and the sexual harassment of female correctional officers and other security problems.”

Alternative Expression

O’Rourke also rejected the argument that the ban leaves inmates inadequate alternative means of expression. He noted that inmates remain free possess sexually explicit writings or “provocative pictures of clothed persons” and that the regulation exempts medical texts, art reference books, National Geographic magazine, and books purchased for prison libraries and educational programs.

The justice went on to say that the rule does not violate California’s inmate rights statute.

Under Penal Code Sec. 2601, O’Rourke explained, the right to “purchase, receive, and read” any reading matter accepted by the Post Office is subject to two exceptions, one for obscene materials and the other for matter “tending to incite to murder, arson, riot, violent racism, or any other form of violence.”

To the extent the regulation bans material that is sexually explicit but not obscene, the justice explained, it falls within the second exception, since it is designed to prevent intimidation of employees and fights among inmates.

The case is Snow v. Woodford, D043702.


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