oriented materials has been ruled constitutional by a federal judge.
In a 53-page ruling, U.S. District Court Judge Steven McAuliffe says the basic question is whether prison officials can decide legally where to hold the line on porn. "And the answer," McAuliffe wrote, "is that they can. Indeed, they probably could have lawfully drawn the line even more restrictively, as other penal institutions have done."
The Concord Monitor says several inmates sued the state Department of Corrections, saying their First Amendment rights were violated by allowing a "literary review committee" to decide which magazines could stay and which could not.
The U.S. Supreme Court has ruled prisons could censor any publication which threatened security, a ruling the high court handed down in 1989. But the justices blocked censorship on grounds of sexual, religious, or political content alone.
New Hampshire's Attorney General Nancy Smith says the McAuliffe ruling sets a precedent for that court district. "I would hope we wouldn't have to deal with this again," she tells the Monitor.
Prison officials in New Hampshire and elsewhere where such bans have been initiated and upheld say such discretion is needed. Corrections Department spokesman John Gifford tells the Monitor the policy is plain good sense - especially when considering sex offenders.
"Part of these programs…is to avoid things that trigger the behaviors that got them into prison," he says.
Inmates are allowed magazines such as Playboy and Gallery, but the Monitor says each issue is screened before it is delivered. No sexually explicit magazines have blanket approval, but a committee of prison officials judges them on merit issue by issue. Appeals go to the prison warden, whose ruling is final.
The state prison prohibits any publication that depicts homosexuality, bestiality, bondage, sadomasochism or sex involving children, the paper continues. Inmates specifically challenged the fact that the homosexuality ban included images of sex between women.
McAuliffe addressed that point in his opinion. "Defendants have not explained why graphic lesbian materials should pose a significantly greater risk than graphic heterosexual materials," he wrote. But he also ruled that, because many such magazines are available to inmates by subscription, the constitutional argument is weak. "Inmates have any number of available avenues by which to exercise their asserted First Amendment rights."
The lawsuit didn't limit itself to porn, but it also charged prison officials with violating federal postal rules.
In mid-August, the 9th U.S. Circuit Court of Appeals upheld a Mariposa County, Arizona regulation stating the prison there could continue banning sexually-explicit materials for security and safety reasons. The court ruled that ban ensured jail safety without violating basic inmates' rights.
