Jails in Maricopa County, Arizona can continue banning Playboy and other sexually explicit materials.
In what the Arizona Republic calls "a rare move," the 9th U.S. Circuit Court of Appeals ruled yesterday that the 1993 ban by county sheriff Joe Arpaio "reasonably ensures jail safety without violating inmates' First Amendment rights."
"The relationship between the possession of sexually explicit materials and the problems sought to be addressed by the policy - sexual harassment of female officers, jail security and rehabilitation of inmates - is clear," wrote 9th Circuit Court Judge Thomas Nelson for the majority.
Judge Betty Fletcher was one of the four dissenting votes. She wrote that many county jail inmates were not yet convicted of any crimes but were being detained before trials. She called the ban "an imposition…totally out of proportion to the problem at hand."
Arpaio himself, who said some of the female guards had complained the materials were used to harass them, praised the ruling. He was quoted as saying, "I always said I'd go to jail before I'd give back those Playboys."
The 9th Circuit Court ruling reverses a ruling from its own bench last year which said the regulation was sweeping enough to cover National Geographic or books containing artwork showing frontal nudity. "The majority apparently concludes," she continued, "that the First Amendment does not protect the right of, for example, a non-violent, non-harassing pretrial detainee to pursue his general equivalency diploma by reading a Western Civilization textbook containing a chapter on the art of the Renaissance," argued Fletcher in her dissenting opinion.
Maricopa County asked the court to reconsider and, late last year, the court withdrew the original ruling and opened it for reconsideration by an 11-judge panel.
Attorney Nicholas Hentoff, who opposed the ban in court, may ask the U.S. Supreme Court to review Tuesday's decision, the Republic says. "No court has ever upheld a policy that infringes upon inmates' rights as severely as this does," he argued.
The Republic says inmate reaction was divided, with one arguing that "looks don't create problems" and the materials were only for sexual gratification, while another suggested the ban would cut the contraband problem at the jails, making less need to search mail.
