25 F.4th 72
2d Cir.2022Background
- Seven Connecticut inmates challenged the 2012 revision to Administrative Directive 10.7 (A.D. 10.7), which broadly bans pictorial depictions of sexual activity or nudity in DOC facilities but includes an "Artistic Exception."
- Pre-2012 sexually explicit pictorial material was widespread in DOC facilities; DOC cited a hostile work environment (including "gunning"), safety/security risks (contraband hidden in materials, bartering, potential for predatory manipulation), and interference with sex-offender rehabilitation as reasons for the ban.
- A DOC committee considered and rejected partial or two-tier bans as impractical and subjective, recommending a total pictorial ban (with the Artistic Exception) implemented in 2012; DOC set up a multilayered review process (mailroom -> media review point person -> Media Review Board -> appeals).
- Plaintiffs sued under the First Amendment and for vagueness, seeking access to pictorial sexually explicit materials; the district court held a multi-day bench trial, applied the Turner reasonableness framework, and ruled for DOC; plaintiffs appealed.
- On appeal the Second Circuit reviewed legal issues de novo and factual findings for clear error, and affirmed the district court: A.D. 10.7 survives Turner and the Artistic Exception is not unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.D. 10.7 violates inmates' First Amendment rights | A.D. 10.7 improperly restricts inmates' right to receive pictorial depictions of nudity/sexual activity and is not reasonably related to penological goals | A.D. 10.7 is reasonably related to legitimate penological interests: preventing a hostile work environment, protecting safety and security, and promoting rehabilitation | Affirmed: under Turner, A.D. 10.7 is reasonably related to DOC objectives and does not violate the First Amendment |
| Whether the Artistic Exception is unconstitutionally vague (facial/as-applied) | The exception is cryptic and subjective, fails to give fair notice, and invites arbitrary enforcement | The directive defines "sexual activity" and "nudity" with specificity, includes a review/appeal process, and close cases can be pre-cleared; procedural safeguards limit arbitrariness | Affirmed: the Artistic Exception is not unconstitutionally vague on its face or as applied |
Key Cases Cited
- Turner v. Safley, 482 U.S. 78 (1987) (establishes the four-factor reasonableness test for prison regulations affecting constitutional rights)
- Thornburgh v. Abbott, 490 U.S. 401 (1989) (discusses neutrality/content and deference to prison administrators on incoming publications)
- Overton v. Bazzetta, 539 U.S. 126 (2003) (places burden on prisoner to disprove reasonableness of prison regulations)
- Giano v. Senkowski, 54 F.3d 1050 (2d Cir. 1995) (Second Circuit upholding a prison ban on nude photographs under Turner)
- Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) (en banc) (upholds ban on sexually explicit materials to protect safety, security, and staff)
- Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) (upholds federal Bureau of Prisons' restriction on commercial nude photographs)
- Procunier v. Martinez, 416 U.S. 396 (1974) (recognizes that prisoners retain First Amendment protections subject to penological limits)