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Ruling for HRDC in censorship suit against AZ DOC

Laredo Morning Times (AZ), Nov. 12, 2019.

Arizona must explain why GQ, National Geographic and Cosmopolitan are banned in prisons, judge says



The Arizona Department of Corrections must define rules about what prisoners can read, according to a federal judge.

Last week, U.S. District Judge Roslyn Silver ordered the Arizona Department of Corrections to come up with "bright-line" rules regarding permissible inmate reading material within 90 days. The directive stems from a 2015 lawsuit filed by Prison Legal News, a project of the Human Rights Defense Center, when prison officials didn't deliver four issues of the monthly journal to its inmate subscribers because the content in those issues were deemed "sexually explicit," according to court documents.

The Arizona Department of Corrections is reviewing the court order with its attorneys and will be responding to Silver, public information officer Bill Lamoreaux said in a statement.

The judge's decision underscores the problem of censoring inmate reading material and the indeterminate manner in which jails and prisons prohibit or grant what incarcerated people can read, prisoner rights advocates say.

In March 2014, copies of Prison Legal News were withheld from the 97 inmate subscribers in Arizona because some articles described nonconsensual sexual contact between guards and prisoners, according to court documents.

Arizona prisoners were receiving their Prison Legal News magazine without issue before March 2014, when more interruption of delivery happened, according to court documents. Prison Legal News notified the director of the corrections department of its unlawful censorship in a February 2015, letter but the agency still didn't deliver uncensored magazines to prisoners, due to a mail policy that prohibits "sexually explicit material."

There was no exception for publications that discussed sexual interactions in a factual or legal manner.

The policy was overly broad and the standard was too vague to be consistently followed, said David Fathi, director of the ACLU's National Prison Project. He has represented Prison Legal News in past cases.

"You saw in the Arizona case that staff were told to use common sense and good judgment. That's a recipe for arbitrary or inconsistent decision making," he said.

Fathi said that the judge's order is a big improvement but that adding a training on the new policy would be best practice,

A list of banned publications by the Arizona Department of Corrections as of June include other seemingly innocuous publications, such as issues of National Geographic, Men's Health and GQ. Books such as "What to Expect When You're Expecting," "The Complete Step-by-Step Book of Honey" and "The Girl with the Dragon Tattoo" are also among the list of contraband reading material.

Earlier this year, Arizona banned "Chokehold: Policing Black Men" by Paul Butler because of prisons safety and operation concerns.

Restricting what inmates can read is a decentralized process that can happen on the state, prison on federal level, said Nazgol Ghandnoosh, senior research analyst for The Sentencing Project.

Bans on sexually explicit material can include biology books and literary works appropriate for high school students.

"It's a huge subjective power that prison officials have in establishing these procedures," Ghandnoosh said, emphasizing that a lack of explicit regulation and public discourse around how such policies are made are usually what lead to high profile cases such as the banning Michelle Alexander's "The New Jim Crow: Mass Incarceration in the Age of Colorblindness."

Silver's order could change the previous issues that were part of the original policy.

In her order, she wrote that Arizona Department of Corrections and the state must change the mail policy from allowing agency employees and agents to use their own discretion for determining what's banned and to establish consistency in excluding sexually explicit material.

The department now has to deliver the previously censored issues of the magazine to its subscribers within 30 days of the order.

The Arizona Department of Corrections said the ban helped protect staff members from unwanted inmate behavior, which Paul Wright, executive director and founder of the Human Rights Defense Center, doesn't agree with.

"It's all conjecture," Wright said, noting that he wanted to settled the case. "The flip side would be, I suspect that all the behaviors they claim are still occurring."

Prison Legal News has been banned for being pornographic before, but those allegations don't appear to hold up well in court, said Wright.

In 2015, a district court in Virginia found that the Virginia Beach Sheriff's Office had an unconstitutional and overbroad policy for sexually explicit materials after Prison Legal News filed a lawsuit when it was informed that inmates at the Virginia Beach Correctional Center and the Virginia Beach Sheriff's Office were not receiving copies of the magazine. The policy was changed, and the court issued a permanent injunction preventing the Virginia Beach Sheriff's Office from returning to its former policy.

Prisoners are subjected to the prejudices and biases of the people who work in the prison system who are often white, male and evangelical Christians, Wright said.

Black, Hispanic and Native Americans are disproportionally incarcerated in Arizona, according to data from the Prison Policy Initiative.