Metropolitan News-Enterprise


Monday, September 17, 2007


Page 1


Inmates Lack Constitutional Right to Watch Television—C.A.


By a MetNews Staff Writer


Prisoners do not have a constitutionally protected right to watch television, the Fourth District Court of Appeal has ruled, also holding that showing religious programming on jailhouse televisions does not violate the Establishment Clause.

In an unpublished opinion for Div. Three, Justice Eileen C. Moore Thursday agreed with Orange Superior Court Judge Fredrick P. Horn that the Orange County Sheriff’s Department did not punish jail inmate Andrew Andersen when it broadcast children’s shows, infomercials, shopping channels, telethons, and other programs that were not part of the previously announced television schedule during his daily allotted television viewing time because Andersen had no constitutional right to watch television.

The panel also affirmed Horn’s ruling that the jail’s passive act of allowing the correctional programming coordinator, whose salary was paid by an inmate welfare fund, to turn the channel to religious programming did not represent an unconstitutional endorsement of religion.

Andersen, who also goes by the name of Edward C. Swanstrom, pled guilty and was convicted in January 2004 of one count of lewd acts upon a child under the age of 14 and was sentenced to 15 years to life in prison. He was detained at the Orange County jail while awaiting trial.

In February 2006, he filed a lawsuit in pro per against Sheriff’s Lt. Bill Griffin and Sgt. Michael Curry under 42 U.S.C. § 1983 alleging that they violated his constitutional rights by denying him access to television and broadcasting religious programming. He later amended the complaint to add J.B. Davis, another sheriff’s officer, and also amended to sue the defendants in their official as well as individual capacities.

In addition to compensatory and punitive damages, he sought a court order to prohibit the jail from broadcasting the religious channel and to order the jail to refrain from punishing pretrial detainees with television and misusing inmate welfare funds.

Andersen alleged that he was a protective custody inmate given access to television for only two hours per day, and that, since April of 2005, the television channel started to be changed to children’s programming, infomercials, shopping channels, telethons, and other programs rather than the programming listed on the television schedule.

Andersen and other inmates said this programming was a form of punishment for breaking jail rules.

Moore disagreed, writing:

“Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into ‘punishment.’

“[T]here is simply no constitutionally protected right at all to watch television while incarcerated or detained. If there is no right to watch television at all, then it follows there is no right to watch particular programs at a given time. This is simply not a cognizable interest under the Constitution.”

Andersen also alleged that he was frequently subjected to television programming on a religious channel that promoted a single religion, and asserted that this amounted to promoting a specific religion to the inmate population.

But Moore concluded that “the passive act of turning a television channel… does not establish the government endorsement or sponsorship of religion.”

Anderson also alleged that the programming constituted a misuse of prisoner welfare funds in violation of Penal Code Sec. 4025, but Moore saw no indication in the statute or other authority to suggest that it created a private right of action for its purported violation. She also said that Andersen failed to plead compliance with the claim presentation requirements in the Government Code.

Justices William W. Bedsworth and Richard M. Aronson joined Moore in her opinion.

Div. Three Thursday rejected another appeal by Andersen, also in an unpublished opinion, from a ruling that his constitutional rights were violated when he was denied access to telephones in the dayroom that he needed in order to participate in his Arizona divorce proceedings.

Officials said that because Andersen’s interactions with other inmates were restricted as a result of his being charged with a sex crime against a child, it was not possible to give him access to a dayroom telephone at the precise times required for him to participate in the court proceedings.

The Court of Appeal held that the constitutional right of access to courts does not guarantee that an incarcerated inmate will be able to participate by telephone in a civil proceeding.

Deputy County Counsel James C. Harman commented that Andersen has been fairly litigious since his incarceration, having filed at least a dozen lawsuits against the county, the sheriff’s department, and individual deputies. With the two rulings on Thursday, only two of those actions remain pending, both in Orange Superior Court, with the county having prevailed in all of the others.

The cases are Andersen v. Griffin, G037731, and Andersen v. Martino, G036337


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