39 F.4th 1121
9th Cir.2022Background
- Arizona Dept. of Corrections issued Order 914 (2010; version at issue effective April 7, 2017) prohibiting inmates from sending/receiving/possessing "sexually explicit material," with a broad illustrative list including depictions of nudity, sexual acts, and a sweeping provision (§1.2.17) banning content that "may...cause or encourage sexual excitement or arousal" or depict "sexually suggestive" settings/poses/attire.
- Prison Legal News (PLN) is a widely circulated inmate journal; the Department redacted portions of several PLN issues (Oct 2014, Apr 2017, May 2017, Jun 2017) asserting Order 914 violations.
- PLN sued under 42 U.S.C. § 1983 claiming Order 914 facially and as-applied violated the First Amendment; district court granted summary judgment to PLN, enjoined the Department to narrow the rule, and ordered distribution of the censored issues.
- Ninth Circuit reviewed de novo under Turner v. Safley’s deferential four-factor test for prison regulations that burden speech rights.
- Court construed Order 914: "sexually explicit" requires graphic depiction (not a mere mention); the phrase "detrimental to the safe, secure, and orderly operation of the facility" modifies only "content," not every instance of "sexually explicit material."
- Holding summary: upheld most of Order 914 as facially constitutional and most as-applied redactions, but struck/severed the overbroad portion of §1.2.17 and found one April 2017 redaction invalid; remanded one May 2017 redaction for clarification; vacated the district court’s permanent injunction except as to the April 2017 redaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of "sexually explicit material": does Order 914 ban mere mentions of sex? | PLN: definition reads "any publication...depicts nudity or sex acts," effectively eliminating "explicit" and banning mere mentions. | DOC: "explicit" retains meaning; rule targets graphic depictions that "depict" nudity/sex acts, not mere mentions. | Held for DOC: "depicts" + "explicit" read together require graphic depiction; mere mention not covered. |
| Does the clause "detrimental to the safe, secure, and orderly operation of the facility" apply to all "sexually explicit material" or only to other listed "content"? | PLN/district ct: phrase modifies only "content," so all sexually explicit material is categorically banned. | DOC: phrase applies to both, requiring an individualized detrimental determination before restriction. | Held: nearest-reasonable-referent canon applies; phrase modifies only "content," so the categorical reading PL R claimed was correct as to syntax, but Court still construes scope of "sexually explicit" narrowly; DOC’s broader reading rejected. |
| Facial challenge: Is Order 914 constitutional under Turner? (including §1.2.17) | PLN: order overbroad, not rationally related to penological interests, gives excessive discretion. | DOC: legitimate penological interests (safety, rehabilitation, preventing sexual harassment); restrictions on graphic sexual material are rationally related and neutral under Turner. | Held partially for DOC: most prohibitions (as narrowly read) satisfy Turner. But §1.2.17’s sweep (ban on material that "may" cause arousal or appears suggestive) is not rationally related and is severed as unconstitutional. |
| As-applied challenges to specific redactions (Oct 2014, Apr 2017, May 2017, Jun 2017 issues) | PLN: redactions of journal articles were improper and unconstitutional in each instance. | DOC: redactions targeted graphic sexual descriptions (including child sexual abuse, sexual acts involving guards/inmates) legitimately covered by the rule. | Held mostly for DOC: Oct 2014, most May 2017 redactions, and Jun 2017 redactions upheld as rational; April 2017 single-sentence redaction (non-graphic mention of rape) invalid; one May 2017 redaction ambiguous—remanded for clarification. |
| Remedy: validity of district court’s permanent injunction requiring rule amendment and distribution of censored issues | PLN: broad injunction needed to cure overbreadth and agency discretion. | DOC: injunction too broad because most of the rule is constitutional; district court should not craft sweeping bright-line rules. | Held: vacated district court injunction except as to the April 2017 redaction; severed unconstitutional portion of §1.2.17 and remanded for further proceedings. |
Key Cases Cited
- Turner v. Safley, 482 U.S. 78 (establishing deferential four-factor test for prison regulations affecting constitutional rights)
- Thornburgh v. Abbott, 490 U.S. 401 (upholding prison authority to restrict incoming publications under Turner framework)
- Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.) (upholding ban on frontal nudity; applying Turner)
- Bahrampour v. Lampert, 356 F.3d 969 (9th Cir.) (upholding ban on sexually explicit mail; recognizing connection to harassment and violence)
- United States v. Stevens, 559 U.S. 460 (discussing facial and overbreadth challenges)
- Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir.) (publisher-focused standing/Turner second-factor discussion)
- Overton v. Bazzetta, 539 U.S. 126 (permitting prison rules that are not least-restrictive when justified by penological goals)
- Miller v. California, 413 U.S. 15 (defining obscenity; noted as distinct from prison-specific restrictions)