Petition for Writ of Certiorari — Mauro v. Arpaio

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No. 99- OFFICE OF THE CLERK

v1 U1 5S DEC 151999

IN THE

Supreme Court of the United States

JONATHAN D. MAURO,

Petitioner,

Vv.

JOSEPH M. ARPAIO and MARICOPA COUNTY,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: THOMAS G. HENTOFF*

WILLIAMS & CONNOLLY

NICHOLAS S. HENTOFF 725 12th Street, N.W.

6601B Georgetown Pike Washington, D.C. 20005

McLean, Virginia 22101 (202) 434-5000

(703) 790-3370

* Counsel of Record Attorneys for Petitioner

ee emer

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

QUESTIONS PRESENTED

1. Do the First and Fourteenth Amendments permit a

county jail system to impose a total ban, with no exceptions

of any kind, on pretrial detainees possessing depictions of

frontal nudity—thus prohibiting and punishing the posses-

sion even of medical, educational, and artistic materials that

include nude figures?

2. Do the First and Fourteenth Amendments permit a

county jail system to impose a total ban on pretrial detain-

ees possessing depictions of frontal nudity without any indi-

vidualized consideration of inmates’ requests for materials

that contain such depictions?

TABLE OF CONTENTS

Page

QUESTIONS FRR basis Giticnrncciimons i

TABLE GP ARTES kiineststciccksanssrissccne Vv

OPINIONS AND ORDERS BELOW ....................... 1

CONSTITUTIONAL PROVISIONS

AND REGULATION INVOLVED ......................65 2

FURS TG vk cisinkcciccccbacaandes Gaccbeaae is ee as 2

STATE <ccs.skscscbuckansdsinnersteeneeeeesaite en 2

A. The County Policy Prohibiting |

and Punishing Possession by

. Inmates of Depictions of Frontal |

PGI ona cccccccciejeamenecamenaetreanieeeess: 4

B. The Turner/Thornburgh Standard .......... 4 |

The Decisions Below ...........csceveccsscees 6 |

1. The District Court Ruling ............ 6 :

2. The Ruling of the Three- |

) gn Rettieneadeian ie pe niatenep nen 8 |

3. The Ruling of the En |

PG REE in sicciken tsi cceneens 9

4. The Dissenting Opinions ............. 10

REASONS FOR GRANTING THE WRIT ............... 12

I. THE EN BANC COURT UPHELD A BAN

ON EXPRESSIVE MATERIALS THAT IS |

“OF UNPRECEDENTED BREADTH?” ............ 13 |

ili

II. THE EN BANC COURT’S DECISION IS

IN CONFLICT WITH THORNBURGH

oo Sa RE RON TT INES ach oA a ee a 16

Ill. THE EN BANC COURT’S DECISION IS

IN CONFLICT WITH TURNER

v. SAFLEY AND WITH DECISIONS

Ne SiMe os oh foci enkaceces 21

A. The Decision Conflicts with Turner v.

a, EE RESETS ASE EEA ECD 22

B. The Decision Conflicts with Decisions

of the Sixth, Seventh, and Eighth

Bie aa S20 a ee 26

2 ee SERS cE par ean eae 28

APPENDIX

A. Opinion of the En Banc Ninth Circuit

Court of Appeals (Aug. 17, 1999) ............ la

B. Order of the Ninth Circuit Court

of Appeals (Dec. 2, 1998) .................... 34a

C. Opinion of Three-Judge Panel of the

Ninth Circuit Court of Appeals

(July 1, 1998, as amended,

i a 35a

D. Order of the U.S. District Court for the

District of Arizona (March 21, 1997) ...... 52a

Constitutional Provisions ...................... Tla

Maricopa County Sheriff’s Office

Inmate Notification (Aug. 6, 1993) ......... 72a

din Sioa

G. Maricopa County Sheriff's Office

Clarification on Issue of Sexually

Explicit Materials (Aug. 6, 1993) ........... 73a

TABLE OF AUTHORITIES

Cases Page

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998),

cert. denied, 119 S. Ct. 2392 (1999)....... 12, 15-16, 20

21, 24-26

Bell v. Wolfish, 441 U.S. 520 (1979) ...................... 11

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996),

cert. denied, 520 U.S. 1251 (1997) ...................... 13

Block v. Rutherford, 468 U.S. 576 (1984) ................ 13

Board of Pardons v. Allen, 482 U.S. 369 Caper) sk +

Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993),

cert. denied, 520 U.S. 1251 (1997) ...................... 14

Frost v. Symington, 1999 WL 1054897

(th Cir. Pov: 23; 1999) ae 12, 21, 24

Giano v. Senkowski, 54 F.3d 1050

GONG Pe et Ae a ee, 14, 15

Kaplan v. California, 413 U.S. 115 REE ceniitlbixe ies. 13

Kentucky Dep't of Corrections v. Thompson,

WR Rete, GE LME bonis cee ea 13

Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994),

cert. denied, 514 U.S. 1005 (1995) ................. 20, 27

McGinnis v. Royster, 410 U.S. 263 (1973) ................ 7

Muhammad v. Pitcher, 35 F.3d 1081

RUN NN us oh sh sk 28

O'Lone v. Estate of Shabazz, 482 U.S. 342 C1967) 6.0560: 13

Osborne v. Ohio, 495 U.S. 103 (1990) .................... 14

Owen v. Wille, 117 F.3d 1235 (11th Cir. 1997),

cert. denied, 522 U.S. 1126 (1998) ...................... 15

Procunier v. Martinez,

GU CNN sc 17, 19, 22

Reno v. ACLU, 521 U.S. 844 SEER oe ha cas 14

Rhodes v. Chapman, 452 U.S. 337 CRED secccieticc ce: 13

Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990),

cert. denied, 498 US. 1026 (1991) ....................... 27

Schad v. Borough of Mt. Ephraim,

O52 UID. GE CAR: cacicibxaseis nice tiiceneisaidniedsas 14

Shimer v. Washington, 100 F.3d 506

Cac BIE a baa van wekcew ack caseiecheessckacckanssonns Fo:

Thompson v. Patteson, 985 F.2d 202

CO Te SO asics ea iicka ic caveccasiinas sovides vavedecisckis 14

Thongvanh v. Thalacker, 17 F.3d 256

CU E.On ch eis cistern seenecaiaas 27

Thornburgh v. Abbott, 490 U.S. 401

CEO) ka ckccddaerceactsssinyssbeniadens sAbesina 4, passim

Turner v. Safley, 482 U.S. 78

GSE E dssinkcitsen Raat 4, passim

Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999) ..... 14

Whitney v. Brown, 882 F.2d 1068 (6th Cir. 1989) ...... 28

Wolff v. McDonnell, 418 U.S. 539 (1974) ................ 13

Constitutional Provisions

U.S; CE: SIRE si iva vcenisspdinssecessovcses i, 2, passim

U.S. COG GRIER. TREY sscscnicevessccusicseccicasans i, 2,4

Statutes and Regulations

Be MP. Re sic ccc cen cn taekauissekcave tone tccamonxdanee 2

OE TEA. BR inte sig vaso chav one idsstaceasnaecansanasensol 4

FO CFR. 6 UO Fe RO ivwvccccvncdsovigissccearscreinats 18

FACE Re Ge a os keacaseanncestaatutovens 6, 17, 18

SE CCRT; BD Fe MMe john an docceceasnnnsecuseutcnaeaaes 16

SO PR. F Sok Oe CHO vensacacivicccccsiontiassseacnsseol 23

Rule

PERN Circe FNS FD ccs cnscipasinsensnniavacssepenaabannn 9

Vii

Miscellaneous

K. Clark, The Nude: A Study in Ideal Form (1956) ..... 14

E. Hale, The Man Without a Country (Chapman Billies,

Ms BOWE a Helakiccictidtss Ss 21

Turner v. Safley, No. 85-1384, Brief

for Respondents (Sept. 11, 1986) ........................ 23

ee a ee ee eee eee Oe Lee oe

IN THE

SUPREME COURT OF THE UNITED STATES

JONATHAN D. MAURO,

Petitioner,

JOSEPH M. ARPAIO AND MARICOPA COUNTY,

Respondents.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

Petitioner Jonathan D. Mauro respectfully petitions for

a writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered in this

case August 17, 1999.

OPINIONS AND ORDERS BELOW

The order of the United States District Court for the

District of Arizona granting summary judgment for respon-

dents is unreported and is reproduced in the Appendix at

A. 52a. The opinion of the three-judge Ninth Circuit panel

reversing the District Court is reported at 147 F.3d i137

and is reproduced at A. 35a. The order of the Ninth Cir-

cuit withdrawing the panel opinion and directing that the

case be reheard by the en banc court is reported at 162

F.3d 547 and is reproduced at A. 34a. The opinion of the

en banc Ninth Circuit court affirming summary judgment is

reported at 188 F.3d 1054 and is reproduced at A. la.

JURISDICTION

The judgment of the en banc Ninth Circuit court was

entered August 17, 1999. On October 20, 1999, Justice

O’Connor extended the time within which to file a petition

for a writ of certiorari in this case to and including Decem-

ber 15, 1999. This Court has jurisdiction to review the

judgment pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND REGULATION INVOLVED

The First and Fourteenth Amendments to the United

States Constitution are reproduced at A. 71a. Documents

setting forth the Maricopa County Sheriff's Office policy

regarding the possession of materials containing depictions

of frontal nudity are reproduced at A. 72a and 73a.

STATEMENT

A. The County Policy Prohibiting and

Punishing Possession by Inmates of

Depictions of Frontal Nudity.

The Maricopa County Sheriff's Office (“MCSO”) runs

a jail system in and around Phoenix, Arizona that is de-

scribed as one of the nation’s largest, “housing 6500 in-

mates at any given time.” A. 2a.' The jails of Maricopa

County (“the County”) “house[] a mix of pretrial detainees

and convicted inmates.” A. 6a n.1.

In August 1993, the MCSO implemented a new policy

at all the County jails, prohibiting inmates from possessing

“sexually explicit material.” A. 72a. The policy defines

“sexually explicit materials” as “materials that show frontal

nudity,” male or female. A. 73a; E.R. 165. Under the

' “A.” refers to the Appendix to this petition. “E.R.” refers to

the Excerpts of Record filed by appellant in the Court of Appeais.

policy, if any inmate is found with “photographs, drawings,

. . . Magazines [or] pictorials that show frontal nudity,” he

is “written up on a Disciplinary Action Report” and his

materials are “confiscated as Administrative Contraband,

and destroyed.” A. 73a-74a. Any such materials sent from

outside the jail are returned as unauthorized mail. Jd. Jail

employees, pursuant to the policy, on numerous occasions

have rejected incoming mail, and confiscated materials in

inmates’ cells, because they contained depictions of frontal

nudity. E.R. 173.

The MCSO policy’s ban is total, with no exceptions for

nudity depicted in connection with medical, educational,

artistic, or any other types of work. A. 9a n.5, 40a, 60a-

61a. It prohibits both incoming publications and inmates’

own artwork. A. 73a. There is no individualized review—

by the Sheriff, other high-level jail administrators, or any-

one—of inmate requests for expressive materials that con-

tain nudity. A. 68a-69a. As summed up by the en banc

Ninth Circuit court: “Under the policy, all materials con-

taining frontal nudity are prohibited. Thus, jail employees

must simply determine whether the material in question

contains frontal nudity; if it does, it is prohibited under the

policy.” A. 9a n.5 (emphasis in original).

The policy, according to a contemporaneous internal

sheriff's office memorandum, was implemented: (i) in re-

sponse to “several complaints from female Detention Offi-

cers” regarding inmates who would display nude pin-ups

from men’s magazines “when the females were present, and

then make inappropriate comments to the females”: and

(ii) because “[o]n any given day 10% to 20% of inmates in

our custody are here on charges of sexual assault, sexual

abuse, child molestation or sexual misconduct and we feel

that morally we should not provide this material to those

people,” E.R. 80-81, which the County later described as

an interest in “rehabilitation” of inmates facing charges on

sex-related offenses. A. 53a. At his deposition, the deputy

chief of the MCSO custody bureau advanced a third justifi-

cation for the policy: (iii) preventing inmate fights that

could occur if anatomical comparisons were drawn between

nude pin-ups and other inmates’ wives or girlfriends. See

Appellees’ Answering Brief at 19 n.8.

The petitioner, Jonathan D. Mauro, was incarcerated at

the County’s Madison Street Jail in Phoenix for roughly two

years awaiting trial on charges of fraudulent schemes and

artifices. Held at the jail solely as a pretrial detainee,

Mauro had not been charged with any offense or jail infrac-

tion involving sexual harassment, sexual misconduct, or

violence. In October 1995, he requested that a subscription

to Playboy magazine be directed to him at the jail.

E.R. 143. Jail administrators rejected his request, citing the

policy’s total ban on materials containing nudity. E.R. 51.

In November 1995, after exhausting his administrative ap-

peals within the jail system, E.R. 51-54, Mauro brought a

lawsuit under 42 U.S.C. § 1983 against the County and the

Sheriff for deprivation of his First and Fourteenth Amend-

ment rights, seeking compensatory damages and injunctive

relief.

B. The Turner/Thornburgh Standard.

The courts below recognized that determining the con-

Stitutionality of the MCSO policy required analysis and ap-

plication of two Supreme Court decisions, Turner v. Safley,

482 U.S. 78 (1987), and Thornburgh v. Abbott, 490 U.S.

401 (1989).

? See First Am. Compl. at 7, Mauro v. Arpaio, No. CIV 95-

2729 PHX RCB (D. Ariz. Feb. 8, 1996). Mauro is no longer a pretrial

detainee at the Madison Street Jail. He is now incarcerated at the Ari-

zona State Prison Complex in Florence. Because of Mauro’s claim for

compensatory damages mootness is not an issue, however. See Board

of Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987).

In Turner, this Court held that “when a prison regula-

tion impinges on inmates’ constitutional rights, the regula-

tion is valid if it is reasonably related to legitimate pe-

nological interests,” 482 U.S. at 89, and set out a four-part

test for judging the constitutionality of such regulations, see

id. at 89-91. Although often described as a test with four

“factors,” see, e.g., A. 5a, the first prong of the Turner test

in fact contains three separate baseline requirements that a

jail or prison regulation must satisfy in order to be valid:

Under this first prong, “the governmental objective” un-

derlying the regulation “must be a legitimate and neutral

one”; “there must be a valid, rational connection between

the prison regulaiion and the legitimate governmental inter-

est put forward to justify it”; and “a regulation cannot be

sustained where the logical connection between the regula-

tion and the asserted goal is so remote as to render the pol-

icy arbitrary or irrational.” Turner, 482 U.S. at 89-90

(quotation omitted; emphasis added).

The second through fourth prongs of the test are indeed

factors “that are relevant to, and that serve to channel, the

reasonableness inquiry.” Thornburgh, 490 U.S. at 414.

They are whether: “there are alternative means of exercis-

ing the right that remain open to prison inmates,” Turner

482 U.S. at 90 (second prong); “the impact accommodation

of the asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources

generally,” id. (third prong); and whether “obvious, easy

alternatives” to the regulation show that it is an ‘exagger-

ated response’ to prison concerns,” id. at 90-91 (fourth

prong).

In Thornburgh, this Court applied the Turner test to

consider a free-speech challenge to prison regulations that

banned incoming publications based on their subject matter.

490 U.S. at 414. Rejecting a facial challenge to federal Bu-

reau Of Prisons regulations that gave wardens the discretion

to reject a particular incoming publication “‘if it is deter-

mined detrimental to the security, good order, or discipline

of the institution or if it might facilitate criminal activity’”

at a particular institution at a particular time, id. at 404-05

(quoting 28 C.F.R. § 540.71(b) (1988)), the Court never-

theless ordered the case remanded for “a determination of

the validity of the regulations as applied to each of the 46

publications” at issue in the case. Jd. at 404. In upholding

the facial validity of the BOP regulations, the Court relied

on, inter alia, “the individualized nature of the determina-

tions required by the regulation,” and that “the regulations

expressly reject certain shortcuts”—such as creating a list of

excluded publications or delegating to lower-level employ-

ees the authority to reject publications based on their subject

matter—“that would lead to needless exclusions.” Jd. at

416-17. The Court endorsed the discretion that the regula-

tions granted to wardens, cautioning that “[aJ]ny attempt to

achieve greater consistency” in the application of the rules

“by broader exclusions might itself run afoul of the second

Turner factor, i.e., the presence or absence of alternative

means of exercising the right in question.” Jd. at 417 n.15

(quotation omitted).

C. The Decisions Below.

1. The District Court Ruling.

The parties made cross-motions for summary judg-

ment. The record demonstrated without dispute that the

prohibition on all materials containing depictions of nudity,

including educational, artistic, and other nonprurient depic-

tions of nudity, was intentional. The County confirmed that

the policy had no exceptions, and that nudity in such maga-

zines as Art & Auction and National Geographic, and pho-

tographs of works of art such as Michelangelo’s David and

Renoir’s The Bathers, would be illegal contraband under

the MCSO policy. See, e.g., E.R. 135, 176.

The County presented testimony that prior to the pol-

icy’s implementation, female prison guards had experienced

sexual harassment from certain inmates who had brandished

nude pin-ups from men’s magazines while making inappro-

priate comments, such as comparing the guards’ anatomy

with that of the pin-ups. The guards also reported on inci-

dents in which inmates had masturbated in their presence

while displaying the pin-ups. E.R. 72.

The District Court noted that the County’s evidence

regarding the other asserted rationales for the policy—the

alleged need to ban nude images in order to “rehabilitate”

those inmates who are facing sex-crime charges, and to pre-

vent fights among inmates over nude _pictures—was

“sparse.” A. 59a n.6.° The District Court observed,

moreover, that none of the County’s evidence in support of

the policy concerned any misconduct involving materials

containing educational, artistic, or other nonprurient depic-

tions of nudity. A.61la. Nor was there any evidence that

depictions of male nudity had ever been misused by or

caused a fight between inmates.

The District Court nevertheless granted summary judg-

ment for the County, holding under the first Turner prong

that neither “an exact link between the excluded materials

and government interests” nor “extensive factual proof of

the link between the regulation and the government’s inter-

ests” was required, A. 61a (emphasis in original), and

finding that the other prongs of the Turner test favored the

County as well. A. 62a-68a.

* The en banc court later observed that the rehabilitation ra-

tionale was in any event “not a legitimate goal to the extent that the jail

is attempting to impose rehabilitation on the pretrial detainees housed at

the jail.” A. 6an.1. See also McGinnis v. Royster, 410 U.S. 263, 273

(1973) (“[I]t would hardly be appropriate for the State to undertake in

the pretrial detention period programs to rehabilitate a man still clothed

with a presumption of innocence”).

2. The Ruling of the Three-Judge Panel.

A unanimous three-judge panel of the Ninth Circuit

reversed. The panel, observing that the County’s ban on

“all depictions of frontal nudity” with no exceptions was “a

prohibition that went far beyond any sanctioned by this

court, or any other,” A. 47a, found the policy to be “sub-

stantially overbroad” on its face and invalid under the First

Amendment. A. 40a. Noting that the First Amendment

protects nonobscene depictions of nudity, the panel ob-

served that “[a] wide variety of magazines and materials

contain some frontal nudity, and pursuant to the regulation,

inmates would be prevented from having any photograph,

drawing or graphic that depicted frontal nudity,” including

“such magazines as National Geographic, medical journals,

artistic works, and countless other materials.” Jd.

Applying the Turner test’s first prong, the panel noted

that the County had “offer[ed] no evidence of past incidents

of violence or harassment” where scientific, artistic, or

other nonprurient materials depicting nudity were involved.

A. 45a. It held the policy unconstitutional, therefore, be-

cause “[t]he County has not carried its burden to show that

such a far reaching prohibition is ‘reasonably related’ to

legitimate penological interests. It offers no proof or rea-

soned explanation.” A. 47a.‘

Relying on this Court’s Thornburgh decision for “use-

ful guidance,” the panel held that the policy failed Turner’s

second prong as well because “in direct contradiction of the

* As an example of the County’s failure to supply a reasoned

basis for the extraordinary breadth of the policy’s ban on nude images,

the panel quoted the deputy chief’s testimony that a photograph of

Michelangelo’s Crucifixion of the Convent of Santo Spirito would be

illegal contraband under the policy because it was conceivable to him

that an “atheist” could incite a fight with a “devout Christian” regard-

ing “the size of the genitals” of the figure in the painting. A. 46a-47a.

Supreme Court’s cautionary language in Thornburgh, Mari-

copa County has enacted a regulation that sweeps too

broadly, indiscriminately eliminating large categories of

materials without individualized consideration.” A. 48a-49a.

See also A. 48a (“There is no issue by issue determination

of whether a particular depiction of nudity might cause the

unwanted consequences the prison seeks to avoid, nor does

the warden have a nondelegable duty to make such an indi-

vidualized determination”). Finding it unnecessary to ex-

amine the final two Turner prongs closely, the panel held

the policy unconstitutional and reversed the grant of sum-

mary judgment in favor of the County. A. 49a.

3. The Ruling of the En Banc Court.

After a “vote of a majority of nonrecused regular active

judges” of the Ninth Circuit, the panel’s opinion was with-

drawn and, pursuant to Ninth Circuit Rule 35-3, the case

was ordered heard by an eleven-judge en banc court.

A. 34a. By a 7-4 vote, the en banc court upheld the con-

Stitutionality of the policy and affirmed the District Court’s

grant of summary judgment. The four judges in the minor-

ity wrote three separate dissenting opinions.

The majority opinion, emphasizing the “deferential

standard of review” required in prison litigation, A. 4a,

proceeded to limit its scrutiny of the policy under 7urner in

two significant, and novel, ways. First, the majority re-

fused to consider under Jurner’s first prong whether the

County’s no-nudity, no-exceptions policy—although cer-

tainly effective in keeping nude pin-ups out of the hands of

those inmates who might have used them to harass female

guards—needlessly swept within its reach expressive mate-

rials whose content was far removed from the harassment

problem. “The only question that we must answer,” the

majority held, is “whether the defendants might reasonably

have thought that the policy would advance its interests.”

A. 7a-8a (emphasis added). Second, the majority refused to

weigh Turner’s fourth prong—“whether the policy is an

‘exaggerated response’ to the jail’s concerns” —at all unless

the inmate first carried his “burden” to propose specific al-

ternatives to the policy that the court considered to be suffi-

ciently obvious and inexpensive. A.5a, 12a-13a, 15a. The

majority also held that Thornburgh did not prohibit a broad

and inflexible subject-matter ban. See A. 8a n.4, 9a n.5.

Limiting its scrutiny in this manner, the majority found

that the MCSO policy did not violate inmates’ free-speech

rights because “all that is required is that there be a ‘ra-

tional’ connection between the policy and the jail’s legiti-

mate objectives.” A. 9a. Because it found that none of the

alternatives that Mauro had proposed in the District Court

was sufficiently obvious and cost-free, the majority refused

to consider whether the jail’s total ban on even educational

and artistic depictions of nudity was needlessly overbroad

and therefore an “exaggerated response” to such problems

as harassment of female guards. A. 15a.

4. The Dissenting Opinions.

In the first of three opinions by the four dissenting

judges, Judge Schroeder warned that “the majority puts us

in conflict with the Supreme Court’s teaching in Thornburgh

v. Abbott, 490 U.S. 401, 417 n.15 [] (1989), that prisons

should eschew prohibition of broad categories of publica-

tions,” and erroneously endorses a policy that “fails the

primary test articulated by the Supreme Court in Turner v.

Safley.” A. 16a. In addition, because “[i]t leaves no alter-

native means for inmates to exercise their First Amendment

rights to illustrated educational, religious, or other materials

that may contain nude figures but are unrelated to any of the

penological concerns underlying the regulation,” the MCSO

policy “flunks the second Turner test as well.” Id.

Judge Fletcher noted in a separate opinion the “aston-

ishingly broad range of material” banned by the policy, and

rejected the notion “that the First Amendment does not

protect the right of, for example, a nonviolent, nonharassing

pretrial detainee to pursue his general equivalency diploma

by reading a Western Civilization textbook containing a

chapter on the art of the Renaissance.” A. 22a.

Judge Kleinfeld, the final dissenter, cautioned that

“[t]he liberty at issue, a First Amendment liberty to read

. . .[,] is a substantial one, especially where it involves peo-

ple whom the state holds as prisoner but who have not yet

been convicted of crimes.” A. 30a. Pursuant to Bell v.

Wolfish, 441 U.S. 520 (1979), Judge Kleinfeld would have

reversed the grant of summary judgment, pointing out, inter

alia, that although “some prisoners did disgusting things

using sexually oriented magazines as props, to harass fe-

male guards, .... [s]o far as the record indicates, the

plaintiff never did. The harassment by other prisoners does

not establish that banning the magazines is not excessive

relative to the goal of maintaining order.” A. 29a.5 Because

“[t]he harassment . . . is caused by display of the magazines

in a purposely harassing manner, but the regulation at issue

goes to their receipt and possession even by those who do

not engage in such conduct, such as plaintiff,” Judge Klein-

feld would have found that a jury issue existed on the issue

of excessiveness. A. 33a.

* Judge Kleinfeld stated that the majority should have used Bell

as the governing standard because it, unlike 7i urner, specifically ad-

dresses the rights of pretrial detainees. A. 23a-24a. The Bell standard

is in certain respects quite similar to Turner’s, asking, inter alia,

whether a regulation affecting pretrial detainees is “reasonably related

to a legitimate governmental objective” or whether “officials have ex-

aggerated their response” to the problems addressed by the regulation.

441 U.S. at 539, 540 n.23. Indeed, this Court in Turner expressly

drew from Bell in crafting the reasonableness test. See 482 U.S. at 87.

REASONS FOR GRANTING THE WRIT

The Ninth Circuit, sitting en banc, has upheld a jail

regulation that inflexibly “bans publications ranging from

the National Geographic to art books displaying Michelan-

gelo’s David.” A. 15a-16a (Schroeder, J., dissenting).

“No other court has upheld such a broad intrusion into an

inmate’s First Amendment rights.” Jd. at Al7a.

Indeed, the possibility that a sister circuit reviewing

new federal prison regulations recently called “bizarre,”

and “all but impossible to believe”—that “the Swimsuit

Edition and Victoria’s Secret pass muster while Michelan-

gelo’s David or concentration camp pictures fail,” Amatel v.

Reno, 156 F.3d 192, 202 (D.C. Cir. 1998), cert. denied,

119 S. Ct. 2392 (1999)—is the very result required by the

MCSO policy that the Ninth Circuit has upheld.

As a subsequent Ninth Circuit panel observed, the en

banc court departed from precedent in reaching this result:

“In very clear and broad language,” the panel advised, the

Mauro decision “dramatically diminishes the level of scru-

tiny that courts ordinarily are to apply to the decisions of

prison administrators.” Frost v. Symington, 1999 WL

1054897, at *7 (9th Cir. Nov. 23, 1999) (emphasis added).

In both Turner and Thornburgh, Justice Stevens cau-

tioned that the principle of deference to prison administra-

tors, key to the “reasonableness” standard, not be taken so

far as to “*permit disregard for inmates’ constitutional rights

whenever the imagination of the warden produces a plausi-

ble security concern and a deferential trial court is able to

discern a logical connection between that concern and the

challenged regulation.’” Thornburgh, 490 U.S. at 434 n.18

(Stevens, J., concurring in part and dissenting in part)

(quoting Turner, 482 U.S. at 100-01 (Stevens, J., concur-

ring in part and dissenting in part)). As Justice Stevens

noted, since there also “‘is a logical connection between

prison discipline and the use of bullwhips on prisoners,’”

id., reducing court scrutiny to this bare minimum would

ignore that, however limited, inmates do retain First

Amendment rights, which are fundamental and merit pro-

tection, see Turner, 482 U.S. at 84.

By rejecting the safeguards set forth in Turner and

Thornburgh that “channel{] the reasonableness inquiry,”

490 U.S. at 414, the en banc Ninth Circuit court has di-

minished the level of scrutiny of the actions of prison ad-

ministrators in precisely the manner that Justice Stevens

warned courts might. Moreover, its modification of the

Turner test to uphold a cavalierly overbroad infringement of

inmates’ free-speech rights undermines confidence in this

Court’s promise in Thornburgh that “a reasonableness stan-

dard is not toothless.” Jd. (quotation omitted). This Court

should grant certiorari, as it has in the past, to review “im-

portant issues relevant to general prison administration” that

are raised in connection with constitutional challenges to

prison rules.°

I. THE EN BANC COURT UPHELD A BAN

ON EXPRESSIVE MATERIALS THAT IS

“OF UNPRECEDENTED BREADTH.”

The First Amendment without doubt protects expres-

sive materials that contain nudity. In general, “[v]Jisual art

is aS wide ranging in its depiction of ideas, concepts and

emotions as any book, treatise, pamphlet or other writing,

and is similarly entitled to full First Amendment protec-

tion.” Bery v. City of New York, 97 F.3d 689, 695 (2d Cir.

1996), cert. denied, 520 U.S. 1251 (1997); see also Kaplan

° Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,

459 (1989). See also O’Lone v. Estate of Sh-bazz, 482 U.S. 342, 348

(1987); Block v. Rutherford, 468 U.S. 576, 582 (1984); Rhodes v.

Chapman, 452 U.S. 337, 344 (1981); Wolff v. McDonnell; 418 U.S.

539, 542 (1974).

v. California, 413 U.S. 115, 119 (1973). In particular,

visual depictions of the nude human figure as an art form

date back to antiquity, see K. Clark, The Nude: A Study in

Ideal Form 4 (1956), and are recognized as protected by the

First Amendment, see Osborne v. Ohio, 495 U.S. 103, 112

(1990); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66

(1981). Cf. Reno v. ACLU, 521 U.S. 844, 878 (1997)

(noting as example of Communications Decency Act’s

overbreadth that “[it] may also extend to . . . artistic im-

ages ihat include nude subjects”).

Accordingly, all the prison and jail rules regulating

sexually explicit materials that courts until now have upheld

have been significantly narrower than the MCSO policy and

otherwise have included safeguards to protect expressive

materials “that may contain nude figures but are unrelated

to the penological concerns underlying the regulation.”

A. 16a (Schroeder, J., dissenting).’

” See, e.g., Thornburgh, 490 U.S. at 405 & n.6 (federal regu-

lations prohibiting material containing sexually explicit depictions of

homosexuality and sado-masochism, but providing exceptions for mate-

rial that “has scholarly, or general social or literary, value” or other-

wise is found by the warden not to pose a threat at the local institution);

Giano v. Senkowski, 54 F.3d 1050,1051-52 (2d Cir. 1995) (policy ban-

ning nude photographs of inmates’ wives or girlfriends, but permitting

commercially produced magazines such as Playboy); Dawson v. Scurr,

986 F.2d 257, 261 (8th Cir. 1993) (rules permitting inmates “to keep

many sexually explicit materials in their cells” and “merely restrict[ing]}

the time and place of access to certain sexually explicit materials”)

(emphasis in original), cert. denied, 520 U.S. 1251 (1997); Thompson

v. Patteson, 985 F.2d 202, 204 (Sth Cir. 1993) (regulations prohibiting

sexually explicit publications only when “a specific factual determina-

tion has been made that the publication is detrimental to prisoner(s’]

rehabilitation because it would encourage deviate criminal sexual be-

havior”) (quotation omitted). See also Waterman v. Farmer, 183 F.3d

208, 210, 211 (3d Cir. 1999) (rules, applicable to inmates at a prison

for “repetitive and compulsive” sex offenders, prohibiting “sexually

oriented and obscene materials” but permitting materials containing

The MCSO policy, on the other hand—prohibiting

“material ranging from art books displaying Michelangelo’s

David to issues of Sports Illustrated depicting male Olympic

swimmers”—is “of unprecedented breadth.” A. 20a (B.

Fletcher, J., dissenting).* Indeed, neither the County nor

the en banc majority undertook to identify a single other jaii

or prison system with anywhere near such a sweeping pro-

hibition. See Turner, 482 U.S. at 93 n.* (noting relevance

to reasonableness inquiry of “the practice of other well-run

institutions, including institutions in the federal system”).

No other “well-run institution,” to petitioner’s knowl-

edge, has gone nearly as far. And at least two federal

Courts of Appeals have doubted whether comprehensive

bans like the one here at issue could withstand First

Amendment scrutiny. See Owen v. Wille, 117 F.3d 1235,

1237 (11th Cir. 1997) (“Defense counsel does not contest

that a blanket ban on nude photographs would be unconsti-

tutional... .”), cert. denied, 522 U.S. 1126 (1998); Giano

v. Senkowski, 54 F.3d 1050, 1056 (2d Cir. 1995) (“the

prison’s policy is not an ‘exaggerated response’ to the

problem (such as prohibiting all erotica might be)”). In

addition, while upholding new federal Bureau of Prisons

regulations that prohibit the distribution in federal prisons

of “commercial material that is sexually explicit or features

nudity,” a divided panel of the D.C. Circuit took pains to

emphasize features of the challenged regulations that distin-

guished them from the policy at issue here. Amatel, 156

F.3d at 194 (quotation omitted).

nudity that are not “predominantly oriented” to depictions of “sexual

activity or associated anatomical area”).

® See id. at 21a n.1 (noting that the testimony of the deputy

chief of the custody bureau confirmed that even pictures of bare-chested

men were considered illegal depictions of frontal nudity).

Most significantly, the court noted that under the BOP

regulations “[e]ven material that otherwise would be said to

‘feature nudity’ is excepted if it contains ‘nudity illustrative

of medical, educational, or anthropological content.’” Jd.

(quoting 28 C.F.R. § 540.72(b) (1998)). The court pointed

out that the Bureau had thus made clear in a program state-

ment that publications such as National Geographic and

Our Bodies, Our Selves were permissible under the regula-

tions, as were provocative publications that do not feature

nudity, such as the Sports Illustrated Swimsuit Edition and

the Victoria’s Secret catalogue. Jd. at 202 (citing P.S.

5266.07, at 7). Accordingly, upholding the regulations’

constitutionality, the D.C. Circuit stated that “[w]e find it

all but impossible to believe that the Swimsuit Edition and

Victoria’s Secret pass muster while Michelangelo’s David

or concentration camp pictures fail; nor has there been any

suggestion that any prison official has attempted to imple-

ment such a bizarre interpretation.” Jd. Here, however, as

Judge Schroeder noted, “[tJhe record in this case establishes

the very facts that the Amatel court found ‘all but impossi-

ble to believe.’” A. 18a.

II. THE EN BANC COURT’S DECISION IS IN

CONFLICT WITH THORNBURGH v. ABBOTT

What, in the view of three of the dissenters below, puts

the Ninth Circuit “in conflict with the Supreme Court’s

teaching in Thornburgh v. Abbott, 490 U.S. 401, 417 n.15

[] (1989),”° is the en banc majority’s approval of a subject-

matter ban on incoming publications that, in addition to its

“unprecedented breadth,” A. 20a (B. Fletcher, J., dissent-

ing), is not tempered by any requirement that jail adminis-

trators give individualized consideration to inmate requests

for materials that include depictions of nudity, which at

° A. 16a (Schroeder J., joined by B. Fletcher, J., and

Thomas, J.).

least would prevent some constitutionally protected publi-

cations from being needlessly prohibited.

In Turner v. Safley, 482 U.S. 78 (1987), as well as in-

validating a Missouri prison prohibition on inmate mar-

riages, see pp. 22-23, infra, this Court upheld the constitu-

tionality of a ban on inmate-to-inmate correspondence

within the Missouri prison system. 482 U.S. at 93. The

ban, however, was not based on the subject matter of the

correspondence. Jd. It was not until Thornburgh that this

Court addressed how to apply Turner’s “reasonableness”

test in the context of a First Amendment challenge to regu-

lations banning incoming materials based on their subject

matter.

The federal prison regulations at issue in Thornburgh

gave wardens the authority to prohibit an incoming publica-

tion, including a “sexually explicit” publication, “‘if it is

determined detrimental to the security, good order, or dis-

cipline of the institution or if it might facilitate criminal ac-

tivity.’"” 490 U.S. at 404-05 & n.5 (quoting 28 C.F.R.

§ 540.71(b) (1988)). Beginning its analysis by acknowl-

edging that “[t}here is little doubt that the kind of censor-

ship just described would raise grave First Amendment

concerns outside the prison context,” id. at 407, the Court

noted that while “[t]he ban on all correspondence between

certain classes of inmates at issue in 7urner Clearly met

th{e] ‘neutrality’ criterion,” the issue “in this case is

closer,” id. at 415. The Thornburgh Court ultimately con-

cluded that the challenged Bureau of Prisons regulations

were “content neutral” for the purpose of prison litigation

because “the Court’s reference to ‘neutrality’ in Turner was

intended to go no further than its requirement in Martinez

that ‘the regulation or practice in question must further an

important or substantial governmental interest unrelated to

the suppression of expression.’” Jd. (quoting Procunier v.

Martinez, 416 U.S. 396, 413 (1974)).

The Court upheld the regulations against a facial chal-

lenge. Under the circumstances—the first and only time

that this Court has addressed under Turner the constitution-

ality of prison rules that expressly and intentionally censor

incoming publications based on subject matter—the Court

emphasized that it was “comforted” by important safe-

guards in the regulations. These safeguards ensured that

the censorship was neither needlessly broad nor based on

the personal prejudices of prison officials, and therefore

satisfied the first prong of the Turner reasonableness test.

Id. at 416.

First, the Court endorsed “the individualized nature of

the determinations required by the regulation. Under the

regulations, no publication may be excluded unless the war-

den himself makes the determination,” and a publication

may be rejected only if it is “determined by the warden to

create an intolerable risk of disorder under the conditions of

a particular prison at a particular time.” /d. at 416-17.

Second, the Court noted with approval that “the regulations

expressly reject certain shortcuts that would lead to needless

exclusions,” such as “establishing an excluded list of publi-

cations” or delegating to lower-level employees the power

to exclude. Jd. at 417 (citing 28 C.F.R. §§ 540.70(b),

540.71(c) (1988)). Third, the Court endorsed the discretion

vested in high-level prison authorities, observing that al-

though broad discretion could lead to inconsistent results,

“[g]iven the likely variability within and between institu-

tions over time . . ., greater consistency might be attainable

only at the cost of a more broadly restrictive rule against

admission of incoming publications,” and cautioning that

“[aJny attempt to achieve greater consistency by broader

exclusions might itself run afoul of the second Turner fac-

tor, i.e., the presence or absence of ‘alternative means of

exercising the right’ in question,” id. at 417 n.15 (quoting

482 U.S. at 90). Consistent with its endorsement of indi-

vidualized consideration, the Court remanded the case for

the district court to make “a determination of the validity of

the regulations as applied to each of the 46 publications” at

issue in the case. Id. at 404.

The en banc majority’s decision here conflicts with this

Court's careful admonitions in Thornburgh in many re-

spects. To lbegin with, although contemporaneous evidence

Showed that “moral[it]y” was one of the motivating factors

for the MCS30’s total ban on nudity, see A. 29a (Kleinfeld,

J., dissenting); E.R. 81, and that one of the asserted goals

of the policy’ was to prevent “inappropriate comments to the

females,” E.R. 80, the majority had no trouble pronouncing

that “[t]he requirement that the policy be ‘neutral’”—i.e.,

furthering am interest unrelated to the suppression of ex-

pression—“is; . . . unquestionably met in this case,”

A. 7a."°

In addititon, none of the safeguards that comforted this

Court in Thornburgh is present here. The MCSO ban is

total, with no) exceptions of any kind. Nor is there any in-

dividualized consideration, for instance, of whether re-

quested matetrjals containing nude images pose a risk of

misuse at a Péarticular jail and at a particular time—whether

the requested publication is Playboy or a medical encyclo-

pedia. A. 68%2-69a. Both of the disfavored “shortcuts that

would lead to needless exclusions” mentioned in Thorn-

burgh, 490 U.S. at 417—making a list of excluded publica-

tions and deljegating exclusionary decisions to low-level

employees—atre prominent features of the policy. A. 16a

(Schroeder, J. dissenting). And the MCSO chose precisely

the type of “more broadly restrictive rule,” 490 U.S. at 417

By contrast, the Thornburgh Court observed that prison

regulations invali¢dated in Martinez, 416 U.S. 396, prohibiting incoming

OF outgoing Writings that, inter alia, expressed “‘inflammatory .. .

views’” or were ““‘otherwise inappropriate’” were “decidedly not ‘neu-

tral’ in the relevant sense.” 490 U.S. at 416 n.14 (quoting 416 U.S. at

415) (emphasis adqdeq).

n.15, that the Thornburgh Court praised the Bureau of Pris-

ons for avoiding: “Under the policy, all materials contain-

ing frontal nudity are prohibited. Thus, jail employees

must simply determine whether the material in question

contains frontal nudity; if it does, it is prohibited under the

policy.” A. 9a n.5 (emphasis in original).

The en banc majority thus read all the Thornburgh-

endorsed safeguards out of the Jurner reasonableness stan-

dard. But 7hornburgh plainly instructs that, when ventur-

ing into the perilous area of censorship based on the subject

matter of expressive materials, prison authorities must, at a

minimum, do one of two things: either provide individual-

ized consideration of requested materials so as not need-

lessly to exclude benign materials that are otherwise pro-

tected by the First Amendment, or narrow the category of

restricted materials to achieve the same result. 490 U.S. at

416-17. See Amatel, 156 F.3d at 212 (Wald, J., dissenting)

(“It was this ‘individualized nature’ of the determinations

that led the Thornburgh Court to conclude that the regula-

tions at issue in that case were rationally related to security

interests, the nature of which . . . can change over time”).

Cf. Kikumura v. Turner, 28 F.3d 592, 598 (7th Cir. 1994)

(“The gloss that Thornburgh puts on the Turner factors

leads us to conclude that summary exclusion of foreign lan-

guage materials is unconstitutional”), cert. denied, 514

U.S. 1005 (1995).

Just as plainly, the MCSO policy upheld by the en banc

majority does neither. As the original three-judge panel

observed below, “in direct contradiction of the Supreme

Court’s cautionary language in Thornburgh, Maricopa

County has enacted a regulation that sweeps too broadly,

indiscriminately eliminating large Categories of materials

without individualized consideration.” A. 49a."

III. THE EN BANC COURT’S DECISION IS IN

CONFLICT WITH TURNER y. SAFLEY AND

WITH DECISIONS OF OTHER CIRCUITS

In addition to rejecting any First Amendment require-

ment that individualized consideration be given to requests

for publications, the en banc majority reached its “bizarre”

and “all but impossible to believe” result, Amatel, 156 F.3d

at 202, by changing the reasonableness standard set forth by

this Court in Turner. The majority did so, first, by “dra-

matically diminish[ing] the level of Scrutiny that courts or-

dinarily are to apply to the decisions of prison administra-

tors,” Frost v. Symington, 1999 WL 1054897, at *7 (9th

Cir. Nov. 23, 1999), and, second, by interpreting Turner’ s

fourth prong—“whether the policy is an ‘exaggerated re-

sponse’ to the jail’s concerns,” A. Sa—as requiring that an

inmate plaintiff first Propose sufficiently cost-free alterna-

tives to a challenged policy before a court will even con-

sider whether the policy is needlessly overbroad or other-

wise unreasonably excessive in relation to its legitimate

objectives. A. 12a-15a. This modification of Turner’s rea-

7 Thornburgh, this Court cited a work of fiction, Dostoyev-

Sky’s House of the Dead, for an extreme example of a “broadly restric-

tive rule against admission of incoming publications.” 490 U.S. at 417

n.15 (inmates permitted to have only the Bible). The MCSO policy, in

arbitrarily cutting from inmates’ reading lists a swath of “illustrated

educational, religious, or other materials that may contain nude fig-

ures,” A. 16a (Schroeder, J., dissenting), itself resembles another fic-

tional ban on publications available to a prisoner. See E. Hale, The

Man Without a Country 15 (Chapman Billies, Inc. 1994) (“He had al-

most all the foreign papers that came into the ship . . .; only somebody

must go over them first, and cut out any advertisement or Stray para-

graph that alluded to America”),

sonableness test is in conflict with the decisions of this

Court and of the Sixth, Seventh, and Eighth Circuits.

A. The Decision Conflicts with Turner v. Safley.

This Court instructed in Turner that, while prison

authorities must be accorded significant deference in carry-

ing out their difficult job, “‘[w]hen a prison regulation or

practice offends a fundamental constitutional guarantee,

federal courts will discharge their duty to protect constitu-

tional rights.°” 482 U.S. at 84-85 (quoting Martinez, 416

U.S. at 405-06). The four-prong “reasonableness” stan-

dard that the Court settled on for judging prison rules, see

p. 5, supra, was, the Court advised, appropriately “respon-

sive both to the policy of judicial restraint regarding pris-

oner complaints and [to] the need to protect constitutional

rights.” 482 U.S. at 85 (quotation omitted). Applying this

reasonableness standard, the Court struck as unconstitu-

tional a Missouri prison regulation that prohibited inmates

from marrying—either other inmates or civilians—unless

the prison superintendent determined that there was a com-

pelling justification for the marriage. Jd. at 96-98.

The Turner defendants had “identified both security

and rehabilitation concerns in support of the marriage pro-

hibition”—specifically, avoiding “love triangles” that

“might lead to violent confrontations between inmates” and

preventing excessive dependence by female inmates on abu-

sive males, because “these women prisoners needed to con-

centrate on developing skills of self-reliance.” Jd. at 97.

Applying the first prong of the reasonableness test, the

Court held that the marriage ban failed to pass constitu-

tional muster because it “sweeps much more broadly than

can be explained by petitioners’ penological objectives.”

482 U.S. at 98 (emphasis added). Specifically, the Court

held that since prison officials had testified that “generally

they had experienced no problem with the marriage of male

inmates,” the state’s proffered justifications failed to ex-

plain a total ban on both female and male inmates getting

married and was therefore invalid. Jd. at 98-99 (emphasis

added). Similarly, since prison officials also had never had

a problem with inmate-civilian marriages, and the officials’

rehabilitation concerns were “centered almost exclusively

on female inmates marrying other inmates or ex-felons,”

the regulation was unconstitutionally broad for the addi-

tional reason that it did “not account for the ban on inmate-

civilian marriages.” Id. at 99.

Moreover, holding that the Missouri regulation’s broad

sweep amounted to an “exaggerated response to. . . secu-

rity objectives,” the Court noted that “obvious, easy alter-

natives” to the Missouri regulation that would accommodate

both the inmates’ constitutional rights and the prison’s con-

cerns included a federal regulation, 28 C.F.R. § 551.10

(1986), that permitted inmates to marry unless the warden

specifically found the marriage to pose a threat to prison

security. Jd. at 97-98. The Court considered this alterna-

tive as evidence of unreasonableness even though the in-

mate plaintiffs appear not to have raised that alternative on

their own. See Brief for Respondents, Turner v. Safley,

No. 85-1384 (Sept. 11, 1986).

The similarity between the record here and the record

in Turner in striking. The Maricopa County jail policy

bans all depictions of nudity, including depictions of males,

even though it had never experienced a problem with al-

leged misuse of nude pictures of men. In addition, depic-

tions of the nude human form in educational, medical, or

artistic materials had never posed a problem to security or

other jail concerns, yet the MSCO needlessly included all

such materials in its ban. A. 59a. Thus, like the regulation

invalidated in Turner, the MCSO policy unreasonably

“sweeps much more broadly than can be explained by peti-

tioners’ penological objectives.” 482 U.S. at 98.

In addition, examples of “obvious” and “easy” alter-

natives to the MCSO policy that would protect female

prison guards while respecting inmates’ free-speech rights

abound—in, for instance, the numerous reported cases up-

holding prison bans on sexually explicit materials that either

exempt depictions of nudity contained in educational, medi-

cal, and other nonprurient works, see, e.g., Amatel, 156

F.3d at 194, or require prison administrators to determine

before censoring that a particular publication poses a risk at

a particular time and place, see, e.g., Thornburgh, 490

U.S. at 404-05.

The en banc majority’s interpretation of the reason-

ableness test conflicts with Turner. Under the first prong of

the Turner test, despite this Court’s instruction to inquire

whether the legical connection between the asserted goal

and the prison rule was too “remote,” 482 U.S. at 89, the

majority held that “[t]he only question that we must answer

is . . . Whether the defendants might reasonably have

thought that the policy would advance its interests.” A. 7a-

8a (emphasis added). Refusing thus even to consider the

degree to which the total ban on nudity was, although ef-

fective, grossly overbroad, the majority repeated that “all

that is required is that there be a ‘rational’ connection be-

tween the policy and the jail’s legitimate objectives.” A. 9a

(emphasis added).

In the words of a subsequent appellate panel, under the

Mauro decision the Ninth Circuit now “holds that. . . as

long as it is plausible that prison officials believed the pol-

icy would further a legitimate objective, the governmental

defendant should prevail on Turner’s first prong.” Frost,

1999 WL 1054897, at *7 (emphasis added). This, how-

ever, is contrary to Turner. As Judge Wald noted in dissent

in Amatel, the Turner Court “did not say, for example, that

prison regulations are valid if there is any conceivable basis

for their existence, as rational basis review is typically for-

mulated .... Rather, the task for courts is to determine,

while giving appropriate deference to the judgment of

prison officials, whether a challenged regulation is, in fact,

reasonable or whether it is an ‘exaggerated response.’”

Amatel, 156 F.3d at 205 (Wald, J., dissenting).

Similarly, the en banc majority held that it need not

consider under the fourth prong whether the regulation is an

exaggerated response to the asserted problem—unless the

inmate plaintiff as a condition precedent first identifies al-

ternatives to the policy that the court determines are suffi-

ciently obvious and inexpensive. Quite explicitly, the ma-

jority instructed that “[iJt is incumbent upon the prisoners

to point to an alternative that accommodates their rights at

de minimis cost to security interests” before the court

would consider this factor. A. 12a-13a (emphasis in origi-

nal; quotation omitted). Adding its own emphasis to lan-

guage from the Turner opinion, the majority reiterated that

it would not consider whether a regulation is unreasonable

as an “‘exaggerated response’” unless “‘an inmate claimant

can point to an alternative.’” A. 12a (quoting Turner, 482

U.S. at 90-91) (emphasis added by Court of Appeals). Be-

cause it found that neither of the alternatives that Mauro

had advanced in the district court—providing a reading

room for materials including nudity or ensuring that only

psychologically fit inmates viewed such materials—was suf-

ficiently obvious or “easy,” the majority held that it would

not even examine whether the “unprecedented breadth,”

A. 20a (B. Fletcher, J., dissenting), of the policy consti-

tuted an exaggerated response to the asserted problems.

A. 15a.

Had the Ninth Circuit’s analysis been applied in

Turner, there is no doubt that the Missouri marriage ban

would have been upheld, since banning all inmate mar-

riages plainly “advanced” the goals of reducing the influ-

ence on female inmates of abusive men. In addition, since

the plaintiff inmates in Turner apparently did not point to

the federal regulation as an “obvious, easy” alternative, the

en banc majority would never even have asked whether the

marriage regulation swept too broadly."

B. The Decision Conflicts with Decisions of the

Sixth, Seventh, and Eighth Circuits.

The D.C. Circuit in Amatel recently expressed the view

that “[p]rison jurisprudence” under 7urner “is not well

enough developed to indicate precisely how demanding the

requirement of rational means-end connection is.” 156

F.3d at 198. It is at least well enough developed, however,

to demonstrate that the Ninth Circuit is now in conflict with

other Courts of Appeals regarding a court’s obligation to

weigh all relevant factors—including a prison rule’s exces-

siveness—in determining whether prisons have justified the

reasonableness of regulations that impinge on inmates’ fun-

damental constitutional rights.

Thus, advising that “[oJur usual prefatory declaration

that prisoners retain certain basic constitutional rights has

meaning,” the Eighth Circuit, in direct conflict with the en

banc court, has interpreted Turner to require that courts

“make sure after an independent review of the evidence that

'? Because it prematurely terminated its scrutiny of the MCSO

policy, the majority never considered the many indications that the no-

nudity, no-exceptions policy was an exaggerated response to the alleged

problems of inmates using nude pin-ups to incite fights and harass fe-

male guards. These include (i) the absence of any evidence supporting

the breadth of the policy; (ii) the County’s failure to attempt any inter-

mediate steps, such as punishing those who used nude pictures to harass

female guards, instead of “bann{ing] the magazines and other materials

for everyone,” A. 30a (Kleinfeld, J., dissenting), or at least prohibiting

the display of nude pictures before banning their possession, id. at

A. 32a; and (iii) the ban’s indiscriminate application to nonharassing,

nonviolent pretrial detainees like Mauro “whom the state holds as pris-

oner but who have not yet been convicted of crimes,” id. at A. 30a.

the regulation is not an exaggerated response to prison con-

cerns.” Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th

Cir. 1990) (emphasis added), cert. denied, 498 US. 1026

(1991). Reversing a district court’s denial of relief to an

inmate plaintiff who sued to require the Arkansas Depart-

ment of Corrections to recognize his new Islamic name, the

court advised that “[rjeasonableness in this context refers

not only to the relation between the goals of a regulation

and its means, but also to the balance struck between the

needs of the prison administrators and the constitutional

rights of prisoners.” Jd. at 1171 n.6 (emphasis added).

Finding that the department of corrections’ policy, which

refused to recognize name changes because of the Claimed

administrative burden, “far exceeds in its scope the admin-

istrative interests recognized by state law,” the court found

the policy to be an exaggerated response and therefore un-

reasonable, /d. at 1175. The court noted as well that pro-

posed alternatives do not “have to be entirely cost-free;

costs that are insubstantial in light of the overall mainte-

nance of the prison are acceptable.” Jd. at 1171. See also

Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994).

Also in direct conflict with the en banc court, the Sev-

enth Circuit has held that “[tlhe obvious implication” of

Turner’s fourth prong “is that a prison may not restrict a

prisoner’s rights without even looking to see how the rights

might be accommodated and estimating the expense entailed

by doing so.” Kikumura v. Turner, 28 F.3d 592, 599 (7th

Cir. 1994) (emphasis added), cert. denied, 514 U.S. 1005

(1995). Likewise, in Shimer v. Washington, 100 F.3d 506

(7th Cir. 1996), emphasizing that “we do engage in an ac-

tual, albeit limited, inquiry” and that “[t]he prison admini-

stration cannot avoid court scrutiny by reflexive, rote asser-

tions,” the Seventh Circuit held that evidence to suggest

more than a “tangential[]” connection between the asserted

problem and the rule implemented to address it “should be

at the heart of the Turner analysis.” Jd. at 510.

EE EEO OOOO ETE

And, in Whitney v. Brown, 882 F.2d 1068 (6th Cir.

1989), a case involving a challenge to a policy prohibiting

Jewish inmates with different security classifications from

congregating for weekly Sabbath services, although the

Sixth Circuit found plausible the connection between the

policy and the prison’s security “goal of minimizing min-

gling between inmates of different security levels,” id. at

1073, the court did not end its inquiry there. Instead, the

court held that “even if the inmates’ arguments” regarding

alternatives to the policy “are disregarded,” the policy

flunked the Turner reasonableness test because, among

other reasons, obvious inconsistencies in its application

were sufficient to show that the prohibition was “an exag-

gerated response to speculative security objectives, and,

therefore, ... invalid.” Jd. at 1077-78 (emphasis added).

See also Muhammad vy. Pitcher, 35 F.3d 1081, 1085, 1086

(6th Cir. 1994) (finding prison policy an unreasonable, ex-

aggerated response even though the inmate plaintiff had

suggested no alternative “other than simply abandoning the

policy”).

CONCLUSION

For the reasons stated, certiorari should be granted.

Respectfully submitted,

Of Counsel: THOMAS G. HENTOFF*

WILLIAMS & CONNOLLY

NICHOLAS S. HENTOFF 725 12th Street, N.W.

6601B Georgetown Pike Washington, D.C. 20005

McLean, Virginia 22101 (202) 434-5000

(703) 790-3370

Attorneys for Petitioner

December 15, 1999 * Counsel of Record

APPENDIX

APPENDIX A

Jonathan D. MAURO, Plaintiff-Appellant,

Joseph M. ARPAIO, Sheriff; Maricopa County,

a political subdivision of the State of Arizona,

Defendants-Appellees.

No. 97-16021.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 25, 1999

Filed Aug. 17, 1999

Nicholas S. Hentoff, Phoenix, Arizona, for the plain-

tiff-appellant.

Daniel P. Struck and David C. Lewis, Jones, Skelton

& Hochuli, Phoenix, Arizona, for the defendants-appellees.

Appeal from the United States District Court for the

District of Arizona; Robert C. Broomfield, District Judge,

Presiding, D.C. No. CV-95-02729-RCB.

NELSON, KLEINFELD, TASHIMA, THOMAS and

WARDLAW, Circuit Judges.

Opinion by Judge T.G. NELSON; Dissents by Judge

SCHROEDER, FLETCHER and KLEINFELD.

T.G. NELSON, Circuit Judge:

This case concerns the constitutionality of a policy is-

sued by Joseph M. Arpaio, in his Capacity as Maricopa

County Sheriff, prohibiting inmates from Possessing “sexu-

ally explicit material.” Jonathan Mauro, an inmate in the

Maricopa County jail system, filed an action under 42

U.S.C. § 1983 claiming that the policy infringed on his

First Amendment rights. Because we conclude that the

policy is reasonably related to legitimate penological inter-

ests, we hold that the policy is a valid restraint on Mauro’s

First Amendment rights.

The Maricopa County jail system is one of the coun-

try’s largest, housing 6500 inmates at any given time. The

average inmate stay is slightly less than fourteen days. Un-

til 1993, the jail had no policy restricting possession of

sexually explicit materials.

Prior to adoption of the policy challenged by Mauro,

female detention officers were faced with situations in

which male inmates compared the officers’ anatomy to that

of nude women depicted in various publications, often

Playboy magazine centerfolds. The officers would be in-

vited to look at the breasts on these nude models, or asked

their opinion about shaved genitalia. The officers would

also encounter inmates who were openly masturbating while

looking at sexually explicit pictures. One inmate told an

officer that he was mentally having anal intercourse with

Miss July, and when he was done, he was going to do the

same to the officer. The officers were confronted with this

type of behavior often, ranging from several times daily to

several times a week.

In response to this problem, on August 6, 1993, the jail

administration instituted a policy which prohibited inmates

from possessing “sexually explicit materials.” The notice

to the inmates only included the prohibition on sexually ex-

plicit materials, while the accompanying notice to jail em-

ployees defined “sexually explicit materials” as “materials

that show frontal nudity” including “personal photographs,

drawings, and magazines and pictorials that show frontal

nudity.” Pursuant to the policy, sexually explicit materials

found in the possession of inmates are confiscated and de-

stroyed.

Implementation of the policy resulted in a Sharp de-

crease in the number of problems encountered by the fe-

male officers. The officers reported that the situations de-

clined to only happening to them occasionally, if at all.

Also, from August 1993, when the policy was imple-

mented, until August 1995, no inmate had requested

authorization to receive and possess sexually explicit mate-

rials that are prohibited under the policy.

Jonathan D. Mauro was incarcerated in the Maricopa

County jail system as a pretrial detainee in August 1995.

He requested that he be allowed to receive a Playboy maga-

zine, which was denied pursuant to the policy. He filed suit

under 42 U.S.C. § 1983 against Maricopa County and its

sheriff, Joseph Arpaio, claiming that the policy infringed

his rights under the First Amendment.

The district court granted the defendants’ motion for

summary judgment and Mauro appealed. A panel of this

court reversed. See Mauro v. Arpaio, 147 F.3d 1137 (9th

Cir.1998). The panel opinion was withdrawn when this

court voted to rehear the case en banc. See Mauro v. Ar-

paio, 162 F.3d 547 (9th Cir. 1998).

Il.

We begin our discussion with a review of two basic

and potentially competing principles that necessarily frame

our analysis of Mauro’s constitutional claim. The first of

these principles is that prisoners are not Stripped of the

protections of the Constitution upon incarceration. See

Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96

L.Ed.2d 64 (1987). Thus, “when a prison regulation or

practice offends a fundamental constitutional guarantee,

federal courts will discharge their duty to protect [prison-

ers’] constitutional rights.” Jd.

The second basic principle that frames our analysis is

that “courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.” Id.

[T]he problems of prisons in America are complex and

intractable, and, more to the point, they are not readily

susceptible of resolution by decree. Running a prison is

an inordinately difficult undertaking that requires ex-

pertise, planning, and the commitment of resources, all

of which are peculiarly within the province of the leg-

islative and executive branches of government. Prison

administration is, moreover, a task that has been com-

mitted to the responsibility of those branches, and sepa-

ration of powers concerns counsel a policy of judicial

restraint. Where a state penal system is involved, fed-

eral courts have ... additional reason to accord defer-

ence to the appropriate prison authorities.

Id. at 84-85, 107 S.Ct. 2254 (citations omitted).

To maintain the necessary balance between these two

basic principles, we must apply a deferential standard of

review to challenges regarding prison regulations and up-

hold the regulation “if it is reasonably related to legitimate

penological interests.” Jd. at 89, 107 S.Ct. 2254.

[SJuch a standard is necessary if prison administrators,

and not the courts, are to make the difficult judgments

concerning institutional operations. Subjecting the day-

to-day judgments of prison officials to an inflexible

Strict scrutiny analysis would seriously hamper their

ability to anticipate security problems and to adopt in-

novative solutions to the intractable problems of prison

administration. The rule would also distort the deci-

sionmaking process, for every administrative judgment

would be subject to the possibility that some court

Te et ETON es PD oy Ss

Ee ELA eee se

Oa ROSS gf tee ge

Rishi sa hi cee ual

somewhere would conclude that it had a less restrictive

way of solving the problem at hand. Courts inevitably

would become the primary arbiters of what constitutes

the best solution to every administrative problem,

thereby unnecessarily perpetuating the involvement of

the federal courts in affairs of prison administration.

Id. (citations, quotations and ellipses omitted).

Il.

To determine whether the jail’s policy of excluding all

material containing frontal nudity “is reasonably related to

legitimate penological interests,” and therefore valid, we

must consider four factors: (1) whether there is a valid,

rational connection between the policy and the legitimate

governmental interest put forward to justify it; (2) whether

there are alternative means of exercising the right;

(3) whether the impact of accommodating the asserted con-

Stitutional right will have a significant negative impact on

prison guards, other inmates and the allocation of prison

resources generally; and (4) whether the policy is an “ex-

aggerated response” to the jail’s concerns. See id. at 89-

90, 107 S.Ct. 2254; Casey v. Lewis, 4 F.3d 1516, 1520

(9th Cir. 1993).

A. Rational Connection

The first factor we must consider is whether there is a

rational connection between the challenged policy and a le-

gitimate governmental interest. See Turner, 482 US. at

89, 107 S.Ct. 2254. This requires us to determine whether

the governmental objective underlying the policy is (1) le-

gitimate, (2) neutral, and (3) whether the policy is “ration-

ally related to that objective.” Thornburgh v. Abbott, 490

U.S. 401, 414, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

The jail’s policy of excluding sexually explicit materi-

als is expressly aimed at maintaining jail security, rehabili-

tating inmates and reducing sexual harassment of female

detention officers, It is beyond question that both jail secu-

rity and rehabilitation are legitimate penological interests.’

See id. at 415, 109 S.Ct. 1874 (prison security); Turner,

482 U.S. at 91, 107 S.Ct. 2254 (prison security); Pell v.

Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d

495 (1974) (rehabilitation); Procunier v. Martinez, 416

U.S. 396, 413-14, 94 §.Ct. 1800, 40 L.Ed.2d 224 (1974)

(prison security, order and rehabilitation). More-

over, although no court has addressed whether reducing

sexual harassment of prison employees is a legitimate pe-

nological interest, there is no doubt that protecting the

safety of guards in general is a legitimate interest, and that

reducing sexual harassment in particular likewise is legiti-

mate.” See Folkerson v. Circus Circus Enters., Inc., 107

F.3d 754, 756 (9th Cir.1997) (holding that employer may

be liable for failing to prevent sexual harassment of em-

ployee by co-workers and by private individuals, such as

business patrons).

' The jail houses a mix of pretrial detainees and convicted in-

mates. The jail’s goal of rehabilitation is a legitimate goal only to the

extent that it applies to the convicted inmates housed at the jail. It is

not a legitimate goal to the extent that the jail is attempting to impose

rehabilitation on the pretrial detainees housed at the jail. See United

States v. Hearst, 563 F.2d 1331, 1345 n. 11 (9th Cir.1977) (“[A] pre-

trial detainee may assert his status as a shield against intrusive practices

aimed solely at rehabilitation but not against practices aimed at security

and discipline.”).

* In his dissent, Judge Kleinfeld maintains that there is a genu-

ine issue of material fact regarding whether the jail's policy of exclud-

ing sexually explicit materials was imposed for the purpose of punishing

pretrial detainees. This issue was not raised by the parties in their

briefs before this court. The issue has therefore been waived. See

Stivers v. Pierce, 71 F.3d 732, 740 n. 5 (9th Cir.1995) (holding that

parties waived issue by failing to raise it in their briefs).

The requirement that the policy be “neutral” is also

unquestionably met in this case. As the Court explained in

Thornburgh, to meet Turner’s “neutrality” test,

the regulation or practice in question must further an

important or substantial governmental interest unrelated

to the suppression of expression. Where, as here,

prison administrators draw distinctions between publi-

cations solely on the basis of their potential implica-

tions for prison security, the regulations are “neutral”

in the technical sense in which we meant and used that

term in Turner.

490 U.S. at 415-16, 109 S.Ct. 1874 (quotations and cita-

tion omitted).

Here, as in Thornburgh, the jail administrators drew a

distinction between materials solely on the basis of the ma-

terials’ potential effect on the prison’s legitimate objectives.

The regulations are therefore “neutral” in the technical

sense required under Turner and Thornburgh. See 490

U.S. at 415-16, 109 S.Ct. 1874; Amatel v. Reno, 156 F.3d

192, 197-98 (D.C.Cir.1998); Dawson v. Scurr, 986 F.2d

257, 261 (8th Cir. 1993).

Finally, the requirement that the policy be rationally

related to the jail’s legitimate objectives is met in this case.

To show a rational relationship between a regulation and a

legitimate penological interest, prison officials need not

prove that the banned material actually caused problems in

the past, or that the materials are “likely” to cause prob-

lems in the future. See Thornburgh, 490 U.S. at 417, 109

S.Ct. 1874; Casey, 4 F.3d at 1521. Moreover, it “does not

matter whether we agree with” the defendants or whether

the policy “in fact advances” the jail’s legitimate interests.

See Amatel, 156 F.3d at 199. The only question that we

must answer is whether the defendants’ judgment was “ra-

tional,” that is, whether the defendants might reasonably

have thought that the policy would advance its interests.

See id.

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. In the

past,’ inmates have used nude photographs to draw ana-

tomical comparisons with the wives, girlfriends and moth-

ers of other inmates, which in turn led to fights and distur-

bances by the inmates and created a security risk for both

inmates and jail employees; to draw anatomical compari-

sons between the female detention officers and the persons

depicted in the photographs; and to openly masturbate in

front of and otherwise sexually harass the female officers.

The relationship between the jail’s policy of prohibiting

the possession of sexually explicit materials and the goals of

preventing sexual harassment of the female officers, inmate

rehabilitation and maintenance of jail security is not so

“remote as to render the policy arbitrary or irrational.”*

* Although it is not required that prison officials be able to

show that the prohibited materials have actually caused problems in the

past, see Casey, 4 F.3d at 1521, their ability to do so certainly

strengthens their case.

* That the jail policy may exclude artistic or scientific journals

does not render the policy unconstitutionally overbroad. As the Court

held in Thornburgh, a prison regulation does not need to pass the “least

restrictive alternative test” to withstand constitutional challenge. See

490 U.S. at 414, 109 S.Ct. 1874. Rather, as long as the regulation

withstands the Turner reasonableness test, it will be deemed constitu-

tional. See id.

Moreover, as the district court found:

{I}t is not “so remote” a possibility for prisoners to barter nude

photographs or drawings in artistic and scientific magazines,

to use such photographs to draw anatomical comparisons with

the wives or girlfriends of other inmates, and to use such pho-

tos to sexually harass female detention officers. In fact, the

See Turner, 482 U.S. at 89-90, 107 S.Ct. 2254; Amatel,

156 F.3d at 200-01; Dawson, 986 F.2d at 261 (holding

regulation restricting access to sexually explicit materials is

rationally related to goals of prison security and inmate re-

habilitation). Although, as the defendants candidly admit,

the “fit” between the policy and the jail’s objectives is not

“exact,” an exact fit is not required. Rather, all that is re-

quired is that there be a “rational” connection between the

policy and the jail’s legitimate objectives. This standard is

met.”

court finds no marked distinction between plaintiff's Exhibit 1,

depicting a live nude female model on the cover of an art

magazine, and a photograph of a nude female model in Play-

boy. Finally, it is interesting to note that one of the very publi-

cations that Mauro points to in support of his claim that the

policy is “overbroad”—National Geographic—is available in

the jail library. In fact, Mauro has been unable to document a

single instance in which a prisoner's request for a copy of Na-

tional Geographic, or any other “scientific” publication, has

been refused because of content.

* We reject Mauro’s argument that the policy is not “rationally

related” because it gives jail employees “unbridled discretion.” As the

Court made clear in Thornburgh, regulations which give broad discre-

tion to prison authorities are appropriate where the regulations concern

materials coming into a prison. See 490 U.S. at 416, 109 S.Ct. 1874.

Moreover, rather than giving jail employees unbridled discretion, as

Mauro contends, the policy actually grants little, if any, discretion to

jail employees. Under the policy, all materials containing frontal nu-

dity are prohibited. Thus, jail employees must simply determine

whether the material in question contains frontal nudity; if it does, it is

prohibited under the policy.

We also reject Mauro’s argument that the policy is unconstitutionally

“vague.” By excluding all materials containing frontal nudity, the pol-

icy sets out a bright-line rule. This bright-line rule not only limits the

discretion available to jail employees, but also ensures consistency in

the exclusion of materials. There is nothing vague about this policy.

10a

B. Alternative Avenues

The second factor we must consider in determining the

reasonableness of the policy’s restriction on constitutional

rights is “whether there are alternative means of exercising

the right that remain open to prison inmates.” Turner, 482

U.S. at 90, 107 S.Ct. 2254. “Where ‘other avenues’ re-

main available for the exercise of the asserted right, courts

should be particularly conscious of the ‘measure of judicial

deference owed to corrections officials ... in gauging the

validity of the regulation.” Jd. (citations omitted).

In applying this factor, “the right in question must be

viewed sensibly and expansively.” Thornburgh, 490 U.S.

at 417, 109 S.Ct. 1874 (quotations omitted). For example,

in Turner, the Court upheld a regulation that restricted cor-

respondence between inmates at different state prisons. In

doing so, the Court rejected the argument that inmates

should be afforded other means of communicating with in-

mates at other institutions, finding it sufficient if other

means of expression remained available to the inmates. See

Turner, 482 U.S. at 92, 107 S.Ct. 2254.

Similarly, in O’Lone v. Estate of Shabazz, 482 U.S.

342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the Court

upheld a regulation that restricted inmates’ ability to attend

the Jumu’ah, a Muslim religious ceremony, finding it suffi-

cient if the inmates were permitted to participate in other

Muslim religious ceremonies. See id. at 351-52, 107 S.Ct.

2400. Finally, in Thornburgh, the Court upheld a regula-

tion restricting the incoming publications that inmates could

receive and possess, finding sufficient alternative means

available to the inmates because the regulations permitted

“a broad range of publications to be sent, received, and

read.” See Thornburgh, 490 U.S. at 417-18, 109 S.Ct.

1874; see also Amatel, 156 F.3d at 201.

lla

We agree with the district court that a sensible and ex-

pansive view of the constitutional right infringed by the

jail’s policy is the “right to receive sexually explicit com-

munications.” Viewed in this sensible and expansive man-

ner, there are many alternative means available to the in-

mates. As the district court recognized, although the policy

bans all sexually explicit materials depicting frontal nudity,

it does not ban sexually explicit letters between inmates and

others, nor does it ban sexually explicit articles or photo-

graphs of clothed females. See Amatel, 156 F.3d at 202

(“[T]he regulation by its terms only restricts pictures; a

prisoner may read anything he pleases.” )

C. Impact on Others

The third factor that we must address is the impact that

accommodation of the asserted constitutional right would

have on prison personnel, other inmates, and the allocation

of prison resources. See Turner, 482 U.S. at 90, 107 S.Ct.

2254. This factor requires us to determine the impact of

allowing inmates unrestricted access to sexually explicit

materials. See id. at 92, 107 S.Ct. 2254.

The impact of such unrestricted access would be sig-

nificant. As discussed previously, such access could lead to

the bartering of sexually explicit materials and anatomical

comparisons which could in turn lead to fights between in-

mates. These fights jeopardize not only the safety of jail

employees, but also other inmates.

Moreover, as also previously discussed, allowing in-

mates unlimited access to sexually explicit materials would

expose the female detention officers, whose complaints

originally led to the adoption of the policy, to sexual har-

assment and a hostile work environment. “Where, as here,

the right in question ‘can be exercised only at the cost of

significantly less liberty and safety for everyone else,

guards and other prisoners alike,’ [we] should defer to the

12a

‘informed discretion of corrections officials.’” Thornburgh,

490 U.S. at 418, 109 S.Ct. 1874 (quoting Turner, 482 U.S.

at 90-92, 107 S.Ct. 2254).

D. Exaggerated Response

The fourth and final factor that we must address is

whether the policy is an exaggerated response to the jail’s

concerns.

[T]he absence of ready alternatives is evidence of the

reasonableness of a prison regulation. By the same

token, the existence of obvious, easy alternatives may

be evidence that the regulation is not reasonable, but is

an “exaggerated response” to prison concerns. This is

not a “least restrictive alternative” test: prison officials

do not have to set up and then shoot down every con-

ceivable alternative method of accommodating the

claimant’s constitutional complaint. But if an inmate

claimant can point to an alternative that fully accom-

modates the prisoner’s rights at de minimis cost to

valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reason-

able relationship standard.

Turner, 482 U.S. at 90-91, 107 S.Ct. 2254 (emphasis

added) (citations omitted).

The burden is on the prisoner challenging the regula-

tion, not on the prison officials, to show that there are ob-

vious, easy alternatives to the regulation. See O’Lone, 482

U.S. at 350, 107 S.Ct. 2400 (“By placing the burden on

prison officials to disprove the availability of alternatives,

the approach articulated by the Court of Appeals fails to

reflect the respect and deference that the United States Con-

Stitution allows for the judgment of prison administra-

tors.”); Turner, 482 U.S. at 91, 107 S.Ct. 2254; Casey, 4

F.3d at 1523 (“It is incumbent upon the prisoners to point

LE RON PGI II GE OE BL Be RI Sat ER NL Cry HAE MST te

13a

to an alternative that accommodates their rights at de mini-

mis cost to security interests.” (emphasis added)).

Mauro pointed to two alternatives in the district court:

(1) a reading room for inmates to view sexually explicit

materials; and (2) psychological testing of inmates who

would be “fit” to receive sexually explicit materials.° We

agree with the district court that both of these alternatives

would impose more than a de minimis cost on valid pe-

nological interests and are therefore inadequate alternatives

to the policy.

First, confining sexually explicit materials to a reading

room would not prevent the sexual harassment of female

detention officers. In fact, the female officers transporting

‘inmates to and from the reading room, as well as those

monitoring the reading room, would be especially vulner-

able to sexual harassment by the inmates. As Deputy Chief

Larry Wendt stated in his deposition, the creation of a

reading room “does not guarantee that female detention of-

ficers would not be subjected to the same kind of harass-

ment and verbal abuse that they endured before adoption of

the Policy in 1993.”

Moreover, the creation of such a reading room would

impose a significant administrative burden on the jail: in-

mates from different custody levels would need to be es-

corted to and from the reading room; strip searches of the

inmates leaving the reading room would have to be con-

° Mauro points to several more alternatives on appeal that were

not raised in the district court. Resolution of whether these newly

raised alternatives would be adequate to address the jail’s concerns

would involve facts not fully developed in the record. We must there-

fore decline to address these new arguments on appeal. See Woods v.

Saturn Distrib. Corp., 78 F.3d 424, 430 (9th Cir.1996); Bolker v.

C.1.R., 760 F.2d 1039, 1042 (9th Cir.1985).

l4a

ducted; and the reading room would have to be monitored.

As Deputy Chief Wendt stated in his affidavit:

6. Specifically, the proposal [of a reading room] is in-

compatible with the current design structure of the

MCSO jails. Simply transporting inmates (from all

custody levels) to a central reading room would be a

logistical nightmare. Additionally, the current rooms

used for attorney and family visitation are already over

capacity. To accept Plaintiff's proposal would require

the County to spend funds to build an entirely new

room or unit with budgetary funds it does not have in

its possession and on vacant space that it does not own.

7. The proposal would also impose an administrative

burden on detention officers who would be required to

transport inmates to and from the room, as well as the

inconvenience of the strip-searching of every inmate

before they may enter the room. We (MCSO com-

mand staff) simply do not have the manpower to pro-

vide this extra service for inmates. Even assuming

only one percent (1%) of the approximately 6,500

MCSO inmates would want to use the room on a

weekly basis, MCSO would have to escort sixty-five

(65) inmates every week to this central reading room.

We do not have the time or the available staff to ac-

commodate this service.

The second alternative Mauro proposes, the psycho-

logical testing of inmates, is also an inadequate alternative.

Although psychological testing may prevent sexual offend-

ers from receiving sexually explicit materials and therefore

adversely affecting their rehabilitation, such testing would

not address the other reasons for having the policy-prison

security and sexual harassment of the female detention offi-

cers. See Friend v. Kolodzieczak, 923 F.2d 126, 128 (9th

Cir.1991) (holding that inmates’ proposed alternative was

SIO SSP CRE” 4,

1Sa

inadequate where it satisfied some, but not all, of prison

officials’ concerns).

Because Mauro failed “to point to an alternative that

accommodates [his] rights at de minimis cost to security in-

terests,” we hold that the policy “is not an exaggerated re-

sponse” to the problems sought to be addressed by the de-

fendants. See Casey, 4 F.3d at 1523.

IV.

We recognize that there may be a different, less re-

Strictive means of achieving defendants’ legitimate objec-

tives. Under Thornburgh, however, the defendants are not

required to adopt the least restrictive means of achieving

these objectives. Rather, the defendants must simply en-

sure that the policy is reasonably related to legitimate

penological interests. Because, under the facts of this case,

the prohibition on sexually explicit materials fulfills this

reasonableness test, we hold that the policy does not violate

the First Amendment.

AFFIRMED.

DISSENTING OPINION

SCHROEDER, Circuit Judge, with whom Judges B.

FLETCHER and THOMAS, Circuit Judges, join, dissent-

ing:

I respectfully dissent.

The majority upholds a regulation that is not the regu-

lation being enforced by Maricopa County in its jails. The

County's regulation defines “sexually explicit” materials as

those materials that “show frontal nudity.” It bans publica-

tions ranging from the National Geographic to art books

l6a

displaying Michelangelo's David. At the same time, it

permits inmates to receive the Sports Illustrated swimsuit

issues and seductive lingerie catalogs. The Maricopa

County regulation is not rationally related to any goal of

rehabilitation, security, or preventing sexual harassment. It

thus fails the primary test articulated by the Supreme Court

in Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254,

96 L.Ed.2d 64 (1987).

The majority treats the regulation as if it were far nar-

rower and limited to sexually explicit depictions like those

contained in hard or soft core pornographic publications.

As our panel originally and unanimously held, the regula-

tion is overbroad and flunks the second Turner test as well.

It leaves no alternative means for inmates to exercise their

First Amendment rights to illustrated educational, religious,

or other materials that may contain nude figures but are un-

related to any of the penological concerns underlying the

regulation.

In upholding the regulation, the majority puts us in

conflict with the Supreme Court's teaching in Thornburgh

v. Abbott, 490 U.S. 401, 417 n. 15, 109 S.Ct. 1874, 104

L.Ed.2d 459 (1989), that prisons should eschew prohibition

of broad categories of publications. The Court, in Thorn-

burgh, approved a regulation that permitted a federal prison

warden to exclude any specific publication after the warden

determined that it was “detrimental to the security, good

order, or discipline of the institution.” /d. at 416, 109

S.Ct. 1874. Although the standard for exclusion may have

seemed broad, the Court explained that it was circum-

scribed by the requirement that “no publication may be ex-

cluded unless the warden himself makes the determination.”

Id. The Court favorably referred to other provisions of the

regulation that prohibited the warden from delegating his

exclusion power or establishing a list of excluded publica-

tions. Jd. at 416-17, 109 S.Ct. 1874.

17a

In contrast, Maricopa County’s policy places the power

of exclusion far from the jail’s administrators, leaving it up

to several rotating, relatively low level mail officers to de-

cide whether a publication is impermissible. Moreover, the

policy seeks to facilitate the mail officers’ detection of pro-

hibited material by imposing an easy to administer, bright

line, standard of “frontal nudity.” Consequently, the

County’s policy falls squarely within the Thornburgh

Court’s admonition that “[a]ny attempt to achieve greater

consistency by broader exclusions might itself run afoul of

the second Turner factor.” Jd. at 417 n. 15, 109 S.Ct.

1874.

No other court has upheld such a broad intrusion into

an inmate’s First Amendment rights. See, e.g., Thorn-

burgh, 490 U.S. at 405 n. 6, 109 S.Ct. 1874 (banning

sexually explicit materials involving homosexuality, sado-

masochism, bestiality, and children); Giano v. Senkowski,

54 F.3d 1050, 1052 (2d Cir.1995) (banning nude or semi-

nude photographs of inmates’ wives or girlfriends); Dawson

v. Scurr, 986 F.2d 257, 259 n. 2 (8th Cir. 1993) (regulation

prohibiting “material portraying bestiality, sadomasochism,

child nudity, or child sexual activity,” and several other

sexual acts).

Yet the majority appears to believe it has a regulation

similar to that recently upheld by a panel majority of the

D.C. Circuit in Amatei v. Reno, 156 F.3d 192

(D.C.Cir.1998), cert. denied, _U.S. __, 119 S.Ct.

2392, __—S«L.Ed.2d ————s (1999). The Maricopa County

regulation is very different. In Amatel, the court upheld a

federal regulation prohibiting material that is “sexually ex-

plicit” or “features nudity.” The Bureau of Prisons adopted

a definition of “features nudity” that is much narrower than

Maricopa County’s standard: “‘features’ means that ‘the

publication contains depictions of nudity or sexually explicit

conduct on a routine or regular basis or promotes itself

18a

based upon such depictions in the case of individual

onetime issues.” Amatel, 156 F.3d at 194. More signifi-

cant, however, is that the regulation in Amatel expressly

provides for an exception to the ban on material that fea-

tures nudity “if it contains ‘nudity illustrative of medical,

educational, or anthropological content."” /d. Accord-

ingly, the Amatel court acknowledged that the regulation

prohibited only “pornography.” /d. at 199 (“The legisla-

tive judgment is that pornography adversely affects reha-

bilitation.”); id. (“We think that the government could ra-

tionally have seen a connection between pornography and

rehabilitative values.”).'

Maricopa County's regulation proscribes much more.

This record demonstrates that prison officials would ban a

photograph of a nude Christ painted by Michelangelo. See

Mauro v. Arpaio, 147 F.3d 1137, 1143 (9th Cir.1998).

The D.C. Circuit in Amatel observed that “[wlJe find it all

but impossible to believe that the Swimsuit Edition and

Victoria's Secret pass muster while Michelangelo's David

or concentration camp pictures fail; nor has there been any

suggestion that any prison official has attempted to imple-

ment such a bizarre interpretation.” 156 F.3d at 202. The

record in this case establishes the very facts that the Amatel

court found “all but impossible to believe.”

Moreover, the sole justification offered by the federal

prisons in Amatel for their regulation was inmate rehabili-

tation. Here, however, the plaintiff is a pretrial detainee

who has not yet been convicted of any crime. Just as the

County has no legitimate interest in his punishment, see

Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979), neither can it have a legitimate interest

' “Pornography” is defined as “material (as books or a photo-

graph) that depicts erotic behavior and is intended to cause sexual ex-

citement.” Webster's New Collegiate Dictionary 888 (1979).

19a

in his rehabilitation. See McGinnis v. Royster, 410 U.S.

263, 273, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973) (“[I}t

would hardly be appropriate for the State to undertake in

the pretrial detention period programs to rehabilitate a man

still clothed with a presumption of innocence.”); United

States v. Hearst, 563 F.2d 1331, 1345 n. 11 (9th Cir.1977)

(observing that a pretrial detainee can “assert his status as a

shield” against jail policies aimed at rehabilitation). The

majority appropriately recognizes that the County's goal of

rehabilitation is not legitimate as applied to pretrial detain-

ees, but dismisses any concern simply by noting that the

County's jails house “a mix of pretrial detainees and con-

victed inmates.”

The County did not rationalize its reliance on rehabili-

tation by arguing that some of its jail’s residents are con-

victed inmates. Quite the contrary, the County has consis-

tently argued to this court that the brief stay of its inmates,

an average of 13.6 days, is a consideration that favors the

regulation’s validity. The thrust of the County’s argument

is that this regulation can rehabilitate inmates who on aver-

age spend just two weeks in its jails.

The County even stresses that its goal of rehabilitation

is aimed at pretrial detainees. It explains that the regulation

is intended “to prevent the introduction of sexually explicit

materials into an environment where 10-20% of all inmates

are facing charges involving sexual offenses.” (emphasis

added). It apparently matters not to the County that in-

mates “facing charges” are presumed innocent and cannot

be the subject of rehabilitative efforts. The fact that the

County argues to this court that its regulation advances an

illegitimate interest in rehabilitation merely underscores the

lack of rationality behind the regulation. Furthermore, be-

cause the County in this case cannot invoke rehabilitation as

a justification for the policy, Amatel provides none of the

support the majority would draw from it.

20a

In fact, the regulation upheld in Amatel, while less in-

trusive than the regulation we have before us, is not itself

free from constitutional doubt. That regulation prompted

an eloquent dissent from Judge Wald:

Claims of prisoners to read magazines like Playboy or

Penthouse may not be the ideal vehicles for the articu-

lation of First Amendment rights. But, as Dostoyevsky

observed, “the degree of civilization in a society is re-

vealed by entering its prisons.” F. DOSTOYEVKSY,

THE HOUSE OF THE DEAD 76 (C. Garnett trans.,

1957). Today’s ruling that prisoners may be stripped

of rights to view publications of their choice on the

mere assertion of legislators or regulators-far removed

from the prison scene and without supporting evidence

of any kind-that those publications will hinder their

“rehabilitation” goes well beyond prior precedent and

the case law in other circuits. It is a most troubling

precedent.

Amatel, 156 F.3d at 214 (Wald, J., dissenting).

The majority assumes that prison inmates, including

pretrial detainees like Mauro who have been convicted of

no crime, are demeaned individuals who would prefer to

see trash rather than art and whose First Amendment rights

therefore will not be affected. This assumption is without

precedent and diminishes our constitutional protections.

B. FLETCHER, Circuit Judge, dissenting:

I concur fully in Judge Schroeder’s dissenting opinion.

The regulation at issue prohibits material ranging from art

books displaying Michelangelo’s David to issues of Sports

Illustrated depicting male Olympic swimmers. As Judge

Schroeder amply demonstrates, such a prohibition is of un-

precedented breadth and cannot pass constitutional muster.

2la

The majority’s attempt to avoid this infirmity by adopting

an unduly narrow reading of the regulation is without sup-

port either in the text of the regulation or in the County’s

expressed understanding of the regulation.’

I also agree with Judge Kleinfeld that on the specifics

of this case, summary judgment should not have been

granted for the County. As Judge Kleinfeld rightly points

out, the County may not attempt to “reform” or “punish”

pretrial detainees. See Bell v. Wolfish, 441 U.S. 520, 535,

99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The majority re-

sponds that Mauro did not raise the issue of whether the

regulation is imposed for the purpose of punishing pretrial

detainees, and that he has therefore waived it. See Majority

Opinion at 10 n.2. In so concluding, the majority ignores

the essence of Mauro’s suit. Throughout this case, Mauro

has referred to himself as a pretrial detainee. In addition to

challenging the regulation as facially overbroad, he chal-

lenges the application of the regulation to him. By claiming

that the regulation may not validly be applied to him,

Mauro necessarily contends that the purpose of the regula-

tion does not justify its application to him. That is, he

claims that the purpose of the regulation does not justify its

application fo a pretrial detainee. Only by ignoring the ob-

vious fact, reflected in the record, that Mauro is (or was at

the relevant time) a pretrial detainee can the majority con-

clude that he has waived the claim most central to his suit.

' The Deputy Chief of the Maricopa County Custody Bureau

confirmed the breadth of the regulation in his deposition:

Q: So if somebody was just topless with their bottom covered

and that was depicted in a photograph or picture, that would be consid-

ered frontal nudity?

A: Yes.

Q: And it doesn’t distinguish between male or female nudity,

correct?

A: Correct.

22a

Last, I agree with Judge Kleinfeld that conventional jail

and prison disciplinary measures--unit segregation, full re-

striction, and reclassification--are more appropriate re-

sponses to the harassment of female guards by inmates.

The county of course has a legitimate interest in preventing

the harassment of its employees. But by choosing to ban

such an astonishingly broad range of material, the county

imposes a substantial and unjustifiable burden on the First

Amendment rights of even those who have no history of

harassment, and who have not yet been convicted of any

criminal offense. Such an imposition is totally out of pro-

portion to the problem at hand.

The majority apparently concludes that the First

Amendment does not protect the right of, for example, a

nonviolent, non-harassing pretrial detainee to pursue his

general equivalency diploma by reading a Western Civili-

zation textbook containing a chapter on the art of the Ren-

aissance. Surely the Constitution’s prohibition on laws

“abridging the freedom of speech,” U.S. Const. amend. I,

means more than that. Because the majority concludes it

does not, I respectfully dissent.

KLEINFELD, Circuit Judge, with whom Judge B.

FLETCHER, Circuit Judge, partially joins, dissenting:

Mauro is a pretrial detainee. As of the time covered by

the record in this case, he had not been convicted of the

crime for which he was being held. He evidently waited

two years in the county jail for his trial.' This case in-

' It may be that, were the record to disclose current circum-

stances, we would have to take notice that Mauro lacks standing, so

there is no case or controversy. It seems doubtful that he is still a pre-

trial detainee in the Madison Street Jail. But the record has nothing in it

to indicate the absence of standing.

Saige eh Oy co

ea SO tee ASA GA el I Dvn BBSNN

Lal GigE SEE Mba Sas oA RORTN Aika ta ae ea

23a

volves his rights prior to conviction. He has some experi-

ence in various jails, and has been accustomed to reading

Playboy, Penthouse, Time, Newsweek, and newspapers

while in jail. There is no evidence in the record that he has

used any of these publications in any of the inappropriate

ways described in the majority opinion, and he testified in

his deposition that he has not. He says in his deposition

that he likes to read Playboy. for the articles. This case

arises from his being turned down on a request that he re-

ceive his Playboys.

My guess is that at the end of the day, the majority will

turn out to be correct, that the jail can ban publications

showing frontal nudity, in order to maintain security and

discipline. But we are not yet at the end of the day. A per-

son’s rights should not be taken away on the basis of a

guess. There is a genuine issue of material fact. The case

was dismissed on summary judgment, without a trial, so a

genuine issue of material fact requires reversal. The issue

of fact is whether the ban was imposed to preserve jail se-

curity and discipiine, or for purposes of punishment. There

is evidence in the record that the reason why the jail ex-

cludes publications with frontal nudity is to punish the pris-

oners. If so, the ban is unconstitutional. “[U]nder the Due

Process Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of

law.” There was also evidence that the jail excluded pub-

lications showing frontal nudity to maintain order, and that

it was not excessive in relation to that purpose. If so, the

ban is probably permissible. A trial is the way to find out.

The majority overlooks the issue of fact because it uses

the wrong case as a source of the controlling rule. The

majority uses the rule from Turner v. Safley, “reasonably

* Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979).

24a

related to legitimate penological interests.”’ That rule ap-

plies to prisons, which impose punishment upon people who

have been convicted of crimes. We should use the rule

from Bell v. Wolfish, that a jail restriction is unconstitu-

tional if it is imposed for purposes of punishment, but is

constitutional if it is “but an incident of some other legiti-

mate governmental purpose,” such as to assure that the in-

dividual will be present for his trial, or “to maintain secu-

rity and order at the institution.” There is a genuine issue

of fact under the rule in Bell, even though there is not under

Turner. That is because “legitimate penological interests”

include punishment. That purpose generally validates a

rule for convicted prisoners, but invalidates it for pretrial

detainees.

“Prisons” and “jails” are not the same things. Jails

hold people pending trial, and for short punitive sentences

after conviction.* Prisons hold people convicted and sen-

tenced to substantial incarceration, ordinarily for felonies.°

The case before us is a jail case, not a prison case. The

plaintiff was being held to await his trial, in the Madison

Street Jail, one of several in the Maricopa County jail sys-

tem. I have not found anything in the briefs and excerpts of

record to show that any of the prisoners in the Madison

> Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96

L.Ed.2d 64 (1987).

* Black’s Law Dictionary 834 (6th ed.1990) (jail is “[a] place

of confinement that is more than a police station lockup and less than a

prison. It is usually used to hold persons either convicted of misde-

meanors (minor crimes) or persons awaiting trial or as a lockup for

intoxicated and disorderly persons.”).

* Black’s Law Dictionary 1194 (6th ed.1990) (“[t}he words

‘prison’ and ‘penitentiary’ are used synonymously to designate institu-

tions for the imprisonment of persons convicted of the more serious

crimes, as distinguished from reformatories and county or city jails.”).

25a

Street Jail have been convicted of the crimes for which they

are being held, although the county jail system as a whole

of course houses both pretrial detainees and persons con-

victed of crimes. The county can punish convicted inmates,

and can restrict First Amendment rights of pretrial detain-

ees tO maintain order in the jail, but it cannot punish pre-

trial detainees or take away First Amendment right of pre-

trial detainees to maintain uniformity with punishment rules

for convicted criminals in other facilities.

Although the majority concedes in footnote 1 that a

prison regulation cannot be adopted for the purpose of pun-

ishing and rehabilitating pretrial detainees, its application of

the “legitimate penological interest” test allows exactly that.

“Penological” means relating to the “theory and practice of

prison management and criminal rehabilitation.”° The

word is derived from the Greek and Latin words meaning

penalty or punishment, and still means roughly the same

thing.’ Turner, after formulating the test, expressly treats

rehabilitation as a legitimate penological interest in its

holding regarding a prohibition against inmate marriages.*

Our disagreement on which rule to apply has substan-

tial practical significance for this case, because there is evi-

dence that the reason why the jail prohibits Mauro from re-

ceiving Playboy is to punish him. Under Bell v. Wolfish,°

Mauro is entitled to defeat the restriction if he can show

either of two propositions to be true, an express intent to

* Am. Heritage Dictionary 918 (2d college ed. 1985).

7 Id.

® Turner v. Safley, 482 U.S. 78, 97-99, 107 S.Ct. 2254, 96

L.Ed.2d 64 (1987).

* Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d

447 (1979).

26a

punish, or a purpose of punishment that can be inferred

from excessiveness of the restriction in relation to the le-

gitimate purpose assigned to it:

A court must decide whether the disability is imposed

for the purpose of punishment or whether it is but an

incident of some other legitimate governmental pur-

pose. Absent a showing of an expressed intent to pun-

ish on the part of detention facility officials, that de-

termination generally will turn on whether an alterna-

tive purpose to which [the restriction] may rationally be

connected is assignable for it, and whether it appears

excessive in relation to the alternative purpose assigned

[to it}.’°

Thus the question for us is whether the record establishes a

genuine issue of fact on either of these two questions. If it

does, Mauro is entitled to try to prove his case."

'0 Bell, 441 U.S. at 538, 99 S.Ct. 1861 (internal citations and

quotations omitted).

'! The majority opinion argues that whether the policy at issue

was imposed for the purpose of punishing pretrial detainees “was not

raised by the parties in their briefs” so has been waived. Mauro’s brief

broadly challenges the constitutionality of the policy on all grounds.

The parties dispute the legitimacy of the purpose of the policy.

Mauro’s brief discusses the Penthouse interview with Sheriff Arpaio “in

which he stated that the purpose behind prohibiting sexually explicit

magazines was to ‘punish’ jail inmates.” The brief for the sheriff and

the county argues that the ban had three purposes, “eliminating work-

place discrimination” against female detention officers, “rehabilita-

tion,” and “to prevent fights among inmates.” The brief argues that

“rehabilitation of inmates is clearly a legitimate penological interest.”

The penological interest of rehabilitation is identical to that of punish-

ment, in that it is constitutionally limited to people who have been con-

victed of crimes. I therefore do not agree that the punishment aspect of

the case “was not raised by the parties in their briefs.”

27a

Mauro had evidence sufficient to establish an issue of

fact material to both Bell questions, though he only needed

evidence on one. First, he produced evidence of what Bell

phrases as “an expressed intent to punish on the part of de-

tention facility officials.”'* Sheriff Arpaio, who runs the

jail, said, in one of the exhibits submitted in opposition to

summary judgment, that his purpose in keeping sex maga-

zines out of the jail was to punish the prisoners:

I don’t think you should live better in jail than on the

outside.... They shouldn’t be country clubs. No Club

Fed in my jails. When you go to jail you should have

to give up certain things--smoking, coffee, adult maga-

zines, and R-rated movies. Jail means punishment. ...

This is my jail and they stay here until they’re con-

victed and sent to state prison.... Ive seen some of

them interviewed on national television, saying they’ll

sign plea agreements just to get out of my jail and be

sent to prison."°

It is hard to imagine better evidence that the purpose of

a restriction is punishment than the man who runs the jail

saying that his pretrial detainees “should have to give up ...

adult magazines” because “jail means punishment.” And

the sheriff uses careful and precise phrasing to make it clear

that he is talking about pretrial detainees, not convicted

criminals.

Arguably this quotation is not cognizable evidence un-

der Rule 56(c) and (e) because it may be inadmissible hear-

say. I cannot tell from the excerpts of record we have

whether that is so. Probably the statement is an admission

? Bell, 441 U.S. at 538, 99 S.Ct. 1861.

'? Exhibit E to plaintiff's motion for preliminary injunction,

Allan Sonnenschein, Sheriff Joe Arapaio, Penthouse, January, 1995, at

87, 134 (emphasis added).

28a

so not hearsay as to the defendant’s own words.’ But the

Statement may be inadmissible hearsay by the reporter who

purported to quote Sheriff Arpaio saying these words.” I

do not know whether Sheriff Arpaio has admitted the accu-

racy of the quotation,’® or whether a declaration by the re-

porter has been filed saying that the sheriff used these

words. The district judge did not reach the question. Ad-

missibility of this critical evidence ought to be ruled on in

the district court.

Even without the sheriff's admission, Mauro has estab-

lished a genuine issue of fact material to the second Bell

criterion, “whether an alternative purpose to which [the re-

striction] may rationally be connected is assignable for it,

and whether it appears excessive in relation to the alterna-

tive purpose assigned [to it].”'’ The Supreme Court did not

say “excessive in relation to the burdens of being in jail

generally” —for a jail inmate, being deprived of Playboy is

among the less substantial interferences with his liberty.

The excessiveness is to be measured in relation to the le-

gitimate purpose of maintaining order in the jail. If the re-

Striction is excessive in relation to that legitimate purpose,

that is evidence that it serves a punitive purpose, which is

not legitimate as to people not yet convicted of the crime

for which they are jailed.

The papers submitted on the summary judgment motion

would enable a jury to conclude that the prohibition of pub-

lications showing frontal nudity was excessive in relation to

“ Fed.R.Evid. 801(d)(2).

'S Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir.1991).

(9th Cir. 1996).

” Beil, 441 U.S. at 538, 99 S.Ct. 1861.

29a

the purpose of maintaining order, and was adopted for other

purposes, including punishment and public relations. The

memorandum written by the deputy chief of the custody

bureau to the sheriff to justify the policy lists several pur-

poses other than and in addition to maintaining order.

Among them are that “morally we should not provide this

material to those people” (referring to people charged with

sex crimes), and “[fjederal law requires that if a female

employee makes a complaint regarding what she considers

obscene, that we as employers must ensure this material is

removed.” The memorandum also discusses the public re-

lations aspect of presenting the ban to reporters, noting that

“[t}he newspaper may bring up the fact that the Arizona

State Prison system allows both smoking and sexually ex-

plicit material to its prisoners.” The moral rehabilitation of

the prisoners must, of course, await their convictions.

As the majority opinion sets out, some prisoners did

disgusting things using sexually oriented magazines as

props, to harass female guards. So far as the record indi-

cates, the plaintiff never did. The harassment by other

prisoners does not establish that banning the magazines is

not excessive relative to the goal of maintaining order.

Every single one of the harassing actions by inmates was

plainly prohibited by the jail discipline code. The jail has

express rules against “engaging in sexual acts,” “making

sexual proposals or threats,” “indecent exposure,” “refus-

ing to obey direct orders from M.C.S.O. staff,” “assault on

employee,” “fighting,” and “conduct which disrupts secu-

rity or operation of institution,” among others. The penal-

ties are substantial-- typically disciplinary segregation, full

restriction, and reclassification. Indecent exposure, engag-

ing in sexual acts, making sexual proposals, are all subject

to restriction, unit segregation and other sanctions. These

sanctions can be imposed by means of a simple internal dis-

cipline procedure, without the burden of proving criminal

charges.

30a

Yet the jail banned the magazines and other materials

for everyone, instead of punishing the people who used

them as props with which the harass the guards. Though the

inmates could not be punished for the crimes with which

they were charged until they were convicted in court, they

could be punished for discipline violations after relatively

informal discipline proceedings in the jail. Punishment of

malefactors is the traditional means of preventing people

from misusing their liberties while leaving the liberties in-

tact for those who do not misuse them. One inmate whose

conduct was especially egregious was charged with a crime,

but so far as the record indicates, the jail discipline system

was never used to deal with the violative uses of sexual

magazines by prisoners.

The reason jail personnel gave for not using the disci-

pline system was that there were too many violations and

the jail stays were too short. That reason is necessarily

speculative where discipline proceedings charges were not

even attempted. Even though all the drivers on an ex-

pressway may be going twenty miles an hour over the speed

limit, it will probably not be necessary to ticket more than a

few to get the rest to slow down. Likewise for more seri-

ous offenses such as the prisoners’ disorderly use of sexual

magazines, punishment of a few may deter the rest. The

liberty at issue, a First Amendment liberty to read (and of

publishers to have access to readers'*) is a substantial one,

especially where it involves people whom the state holds as

prisoner but who have not yet been convicted of crimes.

Ironically, the prisoners could not read the Penthouse inter-

view of the sheriff because it appeared in a publication that

shows frontal nudity. It may be that trial would lead to a

finding of fact that, without evidence that the discipline

'® Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S.Ct. 1874,

104 L.Ed.2d 459 (1989) (“publishers ... have a legitimate First

Amendment interest in access to prisoners”).

Ee PT at i

3la

system had been tried and failed, a total ban was excessive

relative to its legitimate purpose. (Or it might be that it

would not—the case could go either way on the evidence in

the record so far). There is enough here to allow the plain-

tiff to get the question to trial.

A related question on which there is a genuine issue of

fact is whether the ban works. If the ban on sexual maga-

zines is not a reasonably effective means for preventing in-

mates from fighting, harassing guards, and otherwise dis-

rupting the good order of the jail, then the ban is excessive

relative to that purpose. A ban on an exercise of a consti-

tutionally protected liberty, to serve a permissible purpose,

is excessive relative to that purpose if it does not effectively

serve it. The depositions indicate that inmate sexual har-

assment of female guards has continued, despite the ban on

sexual magazines, though some guards say it has declined.

The evidence that inmates use sexual magazines as props to

harass female guards, described in the majority opinion,

does not show that banning sexual magazines prevents in-

mates from sexually harassing female guards. Many of the

people who get thrown in jail are likely to act inappropri-

ately with or without sexually oriented magazines. And

considering that most people in jail are young males, they

are likely to have sexual thoughts about their guards, if the

jail uses female guards. Because the jail uses female guards

for male prisoners, and because inmates in jail must give up

their privacy in order to facilitate security, the female

guards are going to see the prisoners doing things that are

ordinarily not done in front of people of the opposite sex,

or in front of anyone at all. A trial could go either way on

whether the ban on publications, pictures from wives and

girlfriends, and other material showing frontal nudity,

serves the purpose of maintaining order in the jail or is ex-

cessive relative to that purpose because of ineffectiveness.

32a

We have not reached the question whether publications

showing frontal nudity may be kept from pretrial detainees

in jail because of jail administrator’s concerns that

“[flederal law requires that if a female employee makes a

complaint regarding what she considers obscene, that we as

employers must ensure this material is removed.” Defen-

dants argue in their brief that preventing “hostile environ-

ment” in a workplace is a “compelling” government inter-

est that justifies a ban on possession of sexually oriented

speech. This rationale, of course, is not limited to jails.’

The argument would justify a government ban on posses-

sion of publications showing frontal nudity in any work-

place, whether they are displayed to anyone or not. I am

not so sure that the Supreme Court decisions allowing

limitations on the rights of pretrial detainees to preserve

order in the jail include this radical extension of sexual har-

assment law. The guards’ workplace is the inmates’ resi-

dence, and it is an unanswered question that would benefit

from development of a record whether unconvicted indi-

viduals in pretrial custody must give up their liberty to read

what they like in order to accommodate the guards’ interest

in the absence of sexually offensive material at their work-

place. It is one thing for the jail to ban offensive sexual

displays that may drive some women from the workplace,

and another to ban receipt and possession even without dis-

play. The ban here is on receipt of publications, pictures of

wives and girlfriends, and other materials that include

frontal nudity, not on display of those items to guards or

other improper use of them. The harassing displays and

improper uses are prohibited by the discipline rules. That

possession of these publications may offend does not justify

banning them. “The States, acting as guardians of public

'* See generally, Eugene Volokh, Freedom of Speech and Ap-

pellate Review in Workplace Harassment Cases, 90 Northwestern Univ.

L.Rev. 1009 (1996).

33a

morality” may not prohibit speech merely on the basis that

it is offensive.” The harassment, as opposed to the of-

fense, is caused by display of the magazines in a purposely

harassing manner, but the regulation at issue goes to their

receipt and possession even by those who do not engage in

such conduct, such as the plaintiff.

As I said earlier, my speculation, as yet unsupported by

facts because there has been no trial, is that the majority

will turn out to be right in its result. Jails can be rough

places, and need some blunt tools to make the prisoners be-

have themselves while they are there. The jail may well be

able to show that nearly all the items showing frontal nudity

that come in are sex magazines and photographs of wives

and girlfriends, and that the inmates fight and otherwise

disrupt the good order of the jail if these are allowed in, no

matter what the jail tries to do about discipline. On the

other hand, the majority may be wrong. The evidence

might establish that the purpose of the ban on frontal nudity

pictures is to punish the prisoners and rehabilitate them, as

is proved by express declarations or excessiveness relative

to the goal of preserving order in the jail. A trial is a good

way to find out. Arizona has to convict these people before

it is entitled to punish and rehabilitate them. We must not

follow the Red Queen’s injunction, “sentence first--verdict

afterward. ””!

*® Cohen v. California, 403 U.S. 15, 22-23, 91 S.Ct. 1780, 29

L.Ed.2d 284 (1971).

*" Lewis Carroll, Alice’s Adventures in Wonderland 146 (Ran-

dom House 1946).

34a

APPENDIX B

Jonathan D. MAURO, Plaintiff-Appellant,

Joseph M. ARPAIO, Sheriff; Maricopa County,

a political subdivision of the State of Arizona,

Defendants-Appellees,

Arizona Civil Liberties Union, Intervenor.

No. 97-16021.

United States Court of Appeals,

Ninth Circuit.

Dec. 2, 1998.

Prior report: 147 F.3d 1137

ORDER

Upon the vote of a majority of nonrecused regular ac-

tive judges of this court, it is ordered that this case be re-

heard by the en banc court pursuant to Circuit Rule 35-3.

The three-judge panel opinion, Mauro v. Arpaio, No.

97-16021, slip op. at 10013 (9th Cir. Sept. 1, 1998), is

withdrawn.

35a

APPENDIX C

Jonathan D. MAURO, Plaintiff-Appellant,

Joseph M. ARPAIO, Sheriff: Maricopa County,

a political subdivision of the State of Arizona,

Defendants-Appellees.

Arizona Civil Liberties Union, Intervenor.

No. 97-16021.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 17, 1998.

Decided July 2, 1998.

As Amended Sept. 1, 1998.

Nicholas S$. Hentoff, Phoenix, Arizona, for plaintiff-

appellant.

Daniel P. Struck, Jones, Skelton & Hochuli, Phoenix,

Arizona, for defendants- appellees.

Appeal from the United States District Court for the

District of Arizona; Robert C. Broomfield, District Judge,

Presiding. D.C. No. CV-95-02729-RCB.

Before: FLETCHER, D.W. NELSON and BEEZER,

Circuit Judges.

FLETCHER, Circuit Judge:

Jonathan Mauro appeals the district court’s dismissal of

his 42 U.S.C. s 1983 claim. The district court held that the

Maricopa County prison system’s policy prohibiting in-

mates from possessing “sexually explicit” materials does

not violate the First Amendment. The County defines

“sexually explicit” material as that containing any graphic

36a

representation of frontal nudity. The district court held that

the policy was constitutional both as applied to Mauro’s re-

quest for Playboy magazine and as applied to the receipt of

any pictorial representations of frontal nudity. We have

jurisdiction, 28 U.S.C. s 1291, and we reverse, holding

that the policy is unconstitutionally overbroad.

In August 1993 Maricopa County adopted a policy

prohibiting inmates from possessing “sexually explicit”

materials. Appellant Jonathan Mauro, a pretrial detainee,

sought to receive a subscription to Playboy while housed at

one of Maricopa’s prisons and was prevented from doing

so.

The policy defines sexually explicit materials as “per-

sonal photographs, drawings, and magazines and pictorials

that show frontal nudity.” If a prisoner is found in posses-

sion of such items, they are confiscated and the prisoner is

“written up” in a Disciplinary Action Report. The “mail

officer” has the responsibility for determining whether a

particular piece of incoming mail contains sexually explicit

material. The position is rotated among detention staff.

Thus, different persons on different days will determine

whether a particular piece of mail will be withheld.

Maricopa County asserts that its policy was prompted

by three considerations: safety, rehabilitation of inmates,

and reduction of sexual harassment of female prison per-

sonnel. The County produced testimonial evidence that

banning sexually explicit materials was necessary to achieve

these goals. Affidavits or depositions were submitted from

a number of female prison guards; from Larry Wendt,

Deputy Chief of the Maricopa Custody Bureau; and from

Joseph Arpaio, Sheriff of Maricopa County. In addition,

defendants answered written interrogatories and submitted

internal prison memoranda regarding the policy. Female

eee

37a

guards noted that such materials were used to intimidate

and harass them. The Deputy Chief stated that sexually

explicit materials caused “a higher incident [sic] of in-

mate/officers assaults” and “hurt jail security.” A written

explanation of the regulation stated that the regulation was

guided in part by a desire to insure rehabilitation since a

substantial percentage of inmates have been convicted of

sexual offenses.

After discovery, both parties moved for summary

judgment. Mauro had claimed that the policy violated his

rights under several provisions of both the United States

and Arizona Constitutions, but both parties stipulated that

his federal First Amendment claim would be dispositive.

Addressing only the First Amendment issue, the district

court granted summary judgment in the County’s favor,

holding that the policy, though broad, was reasonably re-

lated to legitimate penological interests. The district court

assessed the regulation both as it applied to Playboy and as

it applied to any depiction of frontal nudity.

II.

We review de novo a grant of summary judgment.

Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir.),

cert. denied, U.S. ___, 118 S.Ct. 559, 139 L.Ed.2d

401 (1997).

Mauro asserts that the regulation in question is uncon-

stitutional as applied to his Playboy subscription and as ap-

plied to all materials that depict frontal nudity. The County

avers that: (i) its policy does not concern materials pro-

tected by the First Amendment; (ii) Mauro cannot bring a

facial challenge to the regulation, and (iii) even if Mauro

could bring a facial challenge, the regulation is constitu-

tional as applied to Playboy and as applied to any material

depicting frontal nudity.

38a

The regulation concerns more than just obscene materi-

als, and thus purports to regulate material that is protected

fully by the First Amendment. See Reno v. American Civil

Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 2347, 138

L.Ed.2d 874 (1997) (holding that sexual expression that is

“indecent” is protected by the First Amendment); BSA, Inc.

v. King County, 804 F.2d 1104, 1107 (9th Cir.1986)

(holding that nudity alone ts not enough to make material

legally obscene).

Defendants assert that it is “doubtful” that the materials

banned by its regulation even qualify as protected speech

since the materials banned by the regulation “act as dis-

criminatory conduct in the form of a hostile work environ-

ment.” The County relies on Roberts v. U.S. Jaycees, 468

U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), in

which the Supreme Court held that where “potentially ex-

pressive activities ... produce special harms distinct from

their communicative impact, such practices are entitled to

no constitutional protection.” Jd. at 628, 104 S.Ct. 3244.

The Court noted, for example, that an act of violence that

has an expressive component is not protected by the First

Amendment merely because the act has that expressive

component.

In Roberts, the Court upheld the application of a Min-

nesota statute prohibiting gender discrimination in places of

public accommodation to the practices of the Jaycees. Club

members, who adopted a policy that women could join their

organization but could not vote on club matters, claimed

that Minnesota’s anti-discrimination statute violated their

right to associate. The Supreme Court rejected that argu-

ment, holding that Minnesota could regulate the specialized

harms that flowed from such discriminatory conduct, even

if members’ rights to associate were impinged in the proc-

ess.

Ana ie eS yr Raa re

39a

We disagree that Roberts should be applied to cases,

like the instant case, that involve pure speech. The County

has pointed to no case and we have found none in which

any court has applied this “special harms” theory beyond

the facts of Roberts or the cases that involve regulation of

violent behavior. Roberts has been cited exclusively in

cases with very similar facts, i.e., where the rights of social

club members to associate with each other run afoul of anti-

discrimination laws. We decline Maricopa’s invitation to

expand the application of Roberts.

Defendants next contend that Mauro is limited to chal-

lenging the regulation as it applies only to Playboy since

Mauro conceded at deposition that he has tried only to re-

ceive a subscription to Playboy while in jail and his admin-

istrative grievance to jail authorities concerned only his

Playboy subscription. Mauro may challenge the regulation

as it relates to other materials only if he has standing to

bring a facial overbreadth challenge to the regulation.

A facial overbreadth challenge may be brought to pro-

tect the First Amendment rights of those not before the

court. The County correctly notes that the Supreme Court

has held that “facial overbreadth adjudication is an excep-

tion to ... traditional rules of practice.” Broadrick v. Okla-

homa, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830

(1973). Broadrick describes a number of situations in

which facial challenges are or are not appropriate. For ex-

ample, a facial challenge is not appropriate when a plaintiff

challenges an “ordinary criminal law.” Jd. at 613, 93 S.Ct.

2908. Also, when a statute regulates conduct that some-

times contains elements of expression, an overbreadth

Challenge is appropriate only when the overbreadth of a

Statute is real and substantial. Jd. at 615, 93 S.Ci. 2908;

see also United States v. Stansell, 847 F.2d 609, 613 (9th

Cir.1988) (holding that “if a statute covers both conduct

40a

and speech ... the Supreme Court requires that ‘the over-

breadth of a statute must not only be real, but substantial as

well’ “ (emphasis added)). On the other hand, facial chal-

lenges are particularly appropriate where a statute regulates

“only spoken words,” implicates the right of association, or

acts as a prior restraint. Broadrick, 413 U.S. at 612- 13,

93 S.Ct. 2908.

Maricopa County urges us to apply Broadrick to deny

standing to Mauro to bring a facial challenge because

Mauro has not shown that the regulation is substantially

overbroad. The County contends that given the reality of

prison life, it is “unlikely” that prisoners would request the

type of art magazines and other materials that Mauro sug-

gests would be banned by the regulation. First, we disagree

that the regulation is not substantially overbroad. A wide

variety of magazines and materials contain some frontal nu-

dity, and pursuant to the regulation, inmates would be pre-

vented from having any photograph, drawing or graphic

that depicted frontal nudity. As noted by Mauro, this

would include such magazines as National Geographic,

medical journals, artistic works, and countless other materi-

als. Second, although this is not a classic prior restraint

case, as the regulation operates, inmates are prevented from

receiving any materials that contain nudity, even those that

cannot be legally withheld. If an overbreadth challenge is

not allowed, inmates will be forced to endure an unending

series of legal challenges to determine whether the regula-

tion imposes a ban, piece of mail by piece of mail, while

their First Amendment rights are put on hold. This is not a

case in which the possibility is remote that parties not be-

fore the court would be punished for expressive conduct

that is protected by the First Amendment. See, e.g., Regan

v. Time, Inc., 468 U.S. 641, 650-51, 104 S.Ct. 3262, 82

L.Ed.2d 487 (1984) (noting that an overbreadth challenge

was inappropriate where there existed a remote possibility

that a statute would be applied to persons who were engag-

4la

ing in protected activity). Rather, this is a case in which

materials will be withheld as a matter of course, forcing the

inmates to bear the burden of uncertainty until more cases

are litigated. We conclude that Mauro has standing to bring

a facial challenge.

Cc.

Prisoners do not lose their constitutional rights merely

because they are incarcerated, although such freedoms are

limited necessarily by the context of their surroundings.

See Procunier v. Martinez, 416 U.S. 396, 409-13, 94 S.Ct.

1800, 40 L.Ed.2d 224 (1974). In Turner v. Safley, 482

U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Su-

preme Court held that, “when a prison regulation impinges

on inmates’ constitutional rights, the regulation is valid if it

is reasonably related to legitimate penological interests.”

Id. at 89, 107 S.Ct. 2254. The Court recognized that while

“[p]rison walls do not form a barrier separating prison in-

mates from the protections of the Constitution,” federal

courts are “ ‘ill equipped to deal with the increasingly ur-

gent problems of prison administration.’” Jd. at 84, 107

S.Ct. 2254 (citing Procunier, 416 U.S. at 405-06, 94 S.Ct.

1800). The Court held further that there are four factors to

be considered in assessing the reasonableness of a regula-

tion: (i) whether there is a “valid, rational connection” be-

tween the regulation and the government interest put forth

as justification and whether the purported interest is neutral;

(ii) the extent to which alternative means of expression re-

main open to prisoners; (iii) what impact accommodation of

the inmates’ rights would have on guards, other inmates,

and allocation of prison resources; and, (iv) the absence or

presence of ready alternatives. Jd. at 89-90, 107 S.Ct.

2254 (internal quotations omitted).

There were two regulations at issue in Turner. The

first prohibited inmates from exchanging correspondence

with each other. The Court upheld that regulation, holding

42a

that it was reasonably related to prison safety. The second

prohibited an inmate from marrying without permission of

the superintendent of the prison.’ The Court struck the lat-

ter regulation, holding that it “swept much too broadly than

can be explained by petitioners’ penological interests,” and

that there were easy alternatives that would accommodate

an inmate’s right to marry while protecting prison security.

Id. at 98, 107 S.Ct. 2254.

Two years after Zurner was decided, the Supreme

Court reviewed a prison regulation that prohibited prisoners

from receiving certain sexually explicit materials, i.e.,

those containing images of homosexuality, sado-masochism,

bestiality, and sexual situations involving children. Thorn-

burgh v. Abbott, 490 U.S. 401, 405 n. 6, 109 S.Ct. 1874,

104 L.Ed.2d 459 (1989). In upholding the regulation, the

Court held that prison regulations prohibiting inmates from

receiving certain publications must be analyzed under the

Turner reasonableness standard, and that the regulation sat-

isfied the test. Jd. at 413, 109 S.Ct. 1874.

Regardless of whether the County’s policy would be

constitutional if applied to ban Playboy magazine, it is not

constitutional to ban all depictions of frontal nudity. There

is no appropriate “limiting construction” that may be ap-

plied to save the constitutionality of the regulation. Ac-

cordingly, we hold that it must be struck as a whole.

The first Turner factor combines several inquiries. The

government must establish that its justifications are legiti-

mate and neutral and that there is a rational connection be-

' Prison officials claimed that “love triangles” might lead to

violent confrontations among inmates and that female inmates would

often be better off if they were not involved in abusive marital relation-

ships. /d. at 97, 107 S.Ct. 2254.

43a

tween the regulation and the justifications for that regula-

tion.

Maricopa County claims three interests: safety, reha-

bilitation of inmates, and reduction of sexual harassment.

Both the Supreme Court and this court have held that safety

and rehabilitation are legitimate penological interests. See

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (citing

Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800,

40 L.Ed.2d 224 (1974)). Although no court has addressed

whether reducing sexual harassment of prison guards is a

legitimate penological interest, there should be no doubt

that protecting the safety of guards in general is a legitimate

interest, and that reducing sexual harassment in particular

likewise is legitimate. See, e.g., Folkerson v. Circus Cir-

cus Enters., Inc., 107 F.3d 754, 756 (9th Cir.1997) (hold-

ing that employer may be liable for failing to prevent sexual

harassment of employee by co-workers and by private indi-

viduals, such as business patrons). We find Maricopa

County's interests to be legitimate.

Neutrality has a specific meaning within the context of

prison regulations. Neutrality means that:

the regulation or practice must further an important or

substantial interest unrelated to the suppression of ex-

pression. Where ... prison administrators draw dis-

tinctions between publications solely on the basis of

their potential implications for prison security, the

regulations are ‘neutral’ in the technical sense in which

we meant and used that term in Turner.

Thornburgh, 490 U.S. at 415-16, 109 S.Ct. 1874 (internal

quotations and citations omitted); see also Giano v. Sen-

kowski, 54 F.3d 1050, 1055 (2d Cir.1995) (holding that

“even content-based First Amendment restrictions have

been treated as neutral if their sole purpose is to maintain

prison security amd decrease violence among inmates”);

44a

Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir.1993) (hold-

ing that prison regulations which “distinguish between pub-

lications on the basis of their potential implications for

prison security and rehabilitation ... are ‘neutral’ “).

Here, the regulation purports to distinguish among in-

coming mail and publications based upon the materials’

potential effect on prison safety, not based upon a certain

message contained within that material. See, e.g., Harper

v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (holding

that regulation could not ban materials for “merely advo-

cating homosexual activity,” but could ban those materials

where they are shown to impact prison security). There is

no evidence to the contrary. This is all that is required to

meet the Turner neutrality test.

In demonstrating that a regulation is rationally related

to a legitimate goal, prison officials need not prove that the

banned material actually caused problems in the past, or

that the materials are “likely” to cause problems in the fu-

ture so long as there is an “intolerable risk” of violence.

See Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874 (so

holding); Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir.1993)

(holding that the court needs no proof that the banned mate-

rials had ever been the cause of violence in the past);

Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989)

(holding that prison need not demonstrate proof of actual

danger). Rather, prison officials may anticipate problems

and adopt regulations to forestall them. Casey, 4 F.3d at

1521 (citing Turner, 482 U.S. at 89, 107 S.Ct. 2254).

On the other hand, courts have not allowed prison offi-

cials to enact broad and far-reaching bans simply because

safety or other legitimate interests were purported concerns.

For example, as noted previously, the Court in 7Jurner

struck a prison regulation that prevented inmates from mar-

rying “civilians.” The Court noted, “the rule sweeps much

more broadly than can be explained by petitioners’ pe-

45a

nological interests.” Turner, 482 U.S. at 98, 107 S.Ct.

2254. The Court was concerned that prison officials’ stated

rationale was inconsistent with previous policy and not well

supported by their own testimony. For example, there had

been a long tradition of allowing such marriages, the rule

had been unevenly enforced as applied to male and female

inmates, and prison officials themselves had testified that

they generally had no problem with inmate-civilian mar-

riages. Id. at 99, 107 S.Ct. 2254.

In McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987), this

court struck in part a prison regulation which prevented

prisoners from receiving materials from the Church Jesus

Christ Christian (CJCC). We held that while it was rational

for the prison to ban those CJCC materials which specifi-

cally advocated violence, the prison could not ban CJCC

materials which merely advocated racism, notwithstanding

the prison’s contention that racist materials are inflamma-

tory and can lead to violence. Jd. at 638. Some years

later, in Stefanow v. McFadden, 103 F.3d 1466 (9th

Cir.1996), assessing similar literature, we held that a ban is

appropriate only when the material is “reasonably likely” to

incite violence. Jd. at 1473. In that case, we held that the

book, Christianities Ancient Enemy, could be banned from

the prison because it specifically advocated violence.

While the County presented evidence that magazines

such as Playboy had been used in the past to harass female

guards,’ it offers no evidence of past incidents of violence

or harassment where other materials depicting nudity were

involved. Further, the sole evidence put forth of any po-

tential for future danger was Deputy Chief Wendt’s state-

? Female guards stated, for example, that prisoners would hold

up such magazines and make anatomical comparisons between them and

the persons depicted in the magazines.

46a

ment that it was his opinion that any material depicting nu-

dity could be the focus of violence.

Although prison officials’ opinions regarding security

threats are owed deference, see Wallingford, 877 F.2d at

733, we question whether all materials depicting nudity are

“reasonably likely” to be the cause of violence or a tool of

harassment absent proof or reasoned explanation that this

will result. The deposition of Wendt is the only evidence

that Maricopa County offers to this effect, and Wendt offers

no rationale for his supposition. After establishing that a

photograph of a nude Christ painted by Michelangelo would

be banned by Maricopa County’s policy, Mauro’s attorney

asked Wendt the following:

Q. Do you believe that this photograph would in any

way--the possession of this photograph would in any

way impact upon jail security?

A. Yes, I do.

Q. Why?

A. There is a possibility that if in one cell you had an

inmate or in the same cell you had an inmate who was

an atheist and you had another inmate that was a devout

Christian, and the atheist said something to the effect

that look at the size of the genitals on Jesus Christ, that

could incite a fight between the inmates.

Q. All right. Inmates can fight almost over anything,

correct?

A. Correct.

Q. I mean, a picture of a clothed Christ could incite a

riot, or incite a fight between two inmates?

A. It could.

47a

Q. All right. But yet you don’t ban a picture of a

clothed Christ, do you?

A. I don’t think it has the potion that a picture like this

does.

Other than Wendt’s testimony, Maricopa County

merely states that the possibility that “inmates will misbe-

have when using materials depicting frontal nudity is clearly

a reasonable possibility to which deference toward the poli-

cies of jail officials is required.” The County offered no

expert testimony, see, e.g., Wallingford, 877 F.2d at 733

(discussing affidavit of prison psychiatrist), nor even a

“reasoned” explanation to support its theories, see, e.g.,

Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir.1993). At the

Same time, it imposed a prohibition that went far beyond

any sanctioned by this court, or any other.’ The County

has not carried its burden to show that such a far reaching

prohibition is “reasonably related” to legitimate penological

interests. It offers no proof or reasoned explanation.

The second Turner factor concerns whether a regula-

tion leaves open alternative means of expressing the right

upon which the regulation impinges. See Thornburgh, 490

* Narrow prohibitions on certain types of materials have been

upheld. See, e.g., Thornburgh, 490 U.S. at 405 n. 6, 109 S.Ct. 1874

(banning sexually explicit materials involving homosexuality, sado-

masochism, bestiality, and children); Wallingford, 877 F.2d at 729

(banning material from the Man/Boy Love Association promoting sex

with children); Giano, 54 F.3d at 1052 (banning nude or semi-nude

photographs of inmates’ wives or girlfriends); Dawson, 986 F.2d at 259

n. 2 (banning images of bestiality, sado-masochism, child nudity, and

homosexuality).

Maricopa has defined “sexually explicit” as any depiction of

frontal nudity. Were the County to define it differently or more nar-

rowly, we would have a different case.

48a

U.S. at 418, 109 S.Ct. 1874. The County’s broad regula-

tion fails this alternative means analysis.

The Supreme Court in Thornburgh provided useful

guidance as to the application of this prong of the Turner

test. In Thornburgh, the prison regulation prohibited any

publication that was deemed by the warden to be “detri-

mental to the security, good order, or discipline of the in-

stitution or ... [that] might facilitate criminal activity.” 490

U.S. at 416, 109 S.Ct. 1874. While the Court held that the

alternative means test was satisfied because inmates retained

access to “a broad range of publications,” id. at 418, 109

S.Ct. 1874, the Court noted that the broader the regulation,

the more likely that the regulation will violate the alterna-

tive means test. Jd. at 417 n. 15, 109 S.Ct. 1874. The

Court was “comforted” by the fact that “the regulations ex-

pressly rejected certain shortcuts,” such as the creation of

an excluded list of publications, or the delegation of the

task of making an issue by issue determination to someone

other than the warden himself. Jd. at 417, 109 S.Ct. 1874.

The Court noted that although this might mean that the

regulation would at times be applied inconsistently, “[a]ny

attempt to achieve greater consistency by broader exclu-

sions might itself run afoul of the second Turner factor.”

Id. at 417 n. 15, 109 S.Ct. 1874.

The regulation here forbids any depiction of nudity.

There is no issue by issue determination of whether a par-

ticular depiction of nudity might cause the unwanted conse-

quences the prison seeks to avoid, nor does the warden

have a nondelegable duty to make such an individualized

determination. The blanket prohibition unnecessarily pre-

cludes prisoners’ access to materials fully protected by the

First Amendment. The County has not sought to ban a

small subset of materials containing obscene of otherwise

objectionable nudity while leaving open other means of

viewing similar materials. See, e.g., Giano, 54 F.3d at

49a

1056 (upholding the constitutionality of a prison regulation

prohibiting the possession of nude or semi-nude photo-

graphs of loved ones because “commercially produced

erotica and sexually graphic written notes from wives or

girlfriends are adequate substitutes”); Dawson, 986 F.2d at

261 (upholding a regulation that banned certain sexually

explicit material, such as child pornography, but that al-

lowed inmates to “keep many sexually explicit materials in

their cells”). Rather, in direct contradiction of the Supreme

Court’s cautionary language in Thornburgh, Maricopa

County has enacted a regulation that sweeps too broadly,

indiscriminately eliminating large categories of materials

without individualized consideration.

The third factor weighs an inmate’s request that his

right be accommodated against the asserted impact that ac-

commodating that right will have on other inmates and

prison guards. See Thornburgh, 490 U.S. at 418, 109

S.Ct. 1874; Turner, 482 U.S. at 90, 107 S.Ct. 2254 (hold-

ing that “[iJn the necessarily closed environment of the cor-

rectional institution, few changes will have no ramifications

on the liberty of others or on the use of the prison’s limited

resources for preserving institutional order”). Maricopa

County has failed to address this issue except to insist that

allowing inmates access to any depiction of frontal nudity

would have a negative impact on jail security. We have

rejected this broad claim, and in any event, have no need to

address this factor, finding that the regulation fails to meet

other prongs of the Turner test.

The availability of “obvious, easy” alternatives that

could be implemented at a “de minimis” cost weigh against

the reasonableness of a regulation. Turner, 482 U.S. at 93,

107 S.Ct. 2254. Mauro does not allege to this court that

50a

there are readily available alternative means of allowing

him to view the materials he seeks to view. We have no

ability nor need, then, to evaluate this prong of the 7urner

test.

Il.

Because we find that the regulation is overbroad, we

must determine whether we can narrow the regulation in

such a way as to insure its constitutionality. See Broadrick,

413 U.S. at 613, 93 S.Ct. 2908 (“Facial overbreadth has

not been invoked when a limiting construction has been or

could be placed on a challenged statute.”); BSA, Inc. v.

King County, 804 F.2d 1104, 1110 (9th Cir.1986) (holding

that “the court must determine whether there is a ‘readily

apparent construction ... for rehabilitating the statute’” (ci-

tation omitted)).

Neither party has suggested an appropriate limiting

construction, and we find that none exists. Maricopa has

banned all depictions of frontal nudity. Such a broad re-

striction is not subject to an appropriate limiting construc-

tion and this court has neither the ability nor the power to

fashion an entirely new regulation. See Reno v. American

Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 2351,

138 L.Ed.2d 874 (1997) (holding that courts shall not “re-

write” laws to insure conformance with constitutional re-

quirements, particularly in the absence of clear legislative

intent indicating where “a new line or lines should be

drawn,” even where a severability clause exists). Further,

plain and unambiguous regulations, such as the one in this

case, are not susceptible to limiting constructions. See City

of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 96

L.Ed.2d 398 (1987). As the Maricopa County prison

regulation is overbroad and not subject to an appropriate

limiting construction, we must strike it as a whole.

Sla

IV.

Maricopa County’s policy impinges upon the right of

inmates to receive material protected by the First Amend-

ment. It is overbroad and as such is unconstitutional. We

REVERSE the district court and remand for proceedings

not inconsistent with this decision. Mauro’s request for

reasonable attorney’s fees pursuant to 42 U.S.C. § 1988(b),

is granted. Defendant’s request for costs pursuant to Fed.

R.App. P. 39 is denied.

REVERSED and REMANDED.

52a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHNATHAN D. MAURO,

Plaintiff,

VS. No. CIV 95-2729

MARICOPA COUNTY, a

political subdivision of the State

of Arizona; JOSEPH M. ARPAIO,

both individually and in his

official capacity as Maricopa

County Sheriff,

Defendants.

ORDER

Nm Nee ee”

Plaintiff Jonathan Mauro alleges that Defendants’ pol-

icy of prohibiting inmates’ possession of sexually explicit

materials in Maricopa County jails violated the First

Amendment, the Due Process and Equal Protection Clauses

of the Fourteenth Amendment, and various provisions of

the Arizona State Constitution. The court now considers

Defendants’ motion for summary judgment and Plaintiff's

cross-motion for summary judgment.

I. FACTUAL BACKGROUND

On August 19, 1993, Defendants issued a policy that

prohibited the possession of sexually explicit materials by

inmates within the Maricopa County jail system (the “Pol-

icy”). The Policy defined sexually explicit materials as

“materials that show frontal nudity.” Under the Policy,

sexually explicit materials would be confiscated as contra-

band and destroyed, and the inmate would be written up on

a disciplinary action report. Moreover, a mail officer had

the responsibility of determining whether or not a particular

53a

item was “sexually explicit,” and the mail officer position

was a rotating responsibility among detention staff.

Defendants contend that the Policy was instituted for

three reasons: (1) to prevent fights and disturbances by in-

mates who used the sexually explicit material to barter for

“goods” and by inmates who drew anatomical comparisons

between the materia! and the girlfriends or wives of other

inmates; (2) to prevent the sexual harassment of female de-

tention officers by inmates who used the sexually explicit

materials to threaten, abuse, and intimidate female officers;

and (3) to rehabilitate inmates detained on charges of sex-

ual assault, sexual abuse, child molestation or sexual mis-

conduct.

As to the second reason, Defendants contend that, prior

to the adoption of the policy, several female detention offi-

cers had made complaints about the inmates’ possession and

use of sexually explicit materials. Inmates would make

anatomical comparisons between the sexually explicit pho-

tos and the female detention officers.’ In other cases, in-

mates who possessed sexually explicit magazines would tell

female officers that they wanted to perform sexual acts on

them and would masturbate in front of the female officers.’

Defendants content that this type of sexual harassment of

female guards by inmates occurred repeatedly on a daily

basis. But, after the institution of the Policy, Defendants

' In the one instance, an inmate held the sexually explicit

magazine to the female guard and asked, “What do you think of her?

Doesn’t she have great breasts? I bet you look that good naked.”

Other remarks by inmates possessing sexually explicit materials in-

cluded: “How do you like the tits on this one?” and “How do you like

the shaved beaver on this one?”

> One particular inmate, while masturbating in his cell, told a

female detention officer that he was “fucking Miss July up the ass right

now and, when I’m done, I’m going to fuck you up the ass.”

54a

allege that the number of incidents of sexual harassment and

the number of fights between inmates have dramatically de-

creased.

Plaintiff Mauro is a pre-trial detainee housed in the

Madison Street Jail awaiting trial on charges of fraudulent

schemes and artifices. Mauro alleges that he has been in-

jured by enforcement of the Policy when he could not ob-

tain a subscription to Playboy magazine on October, 1993.

Raising the following arguments, Mauro challenges the

constitutionality of the Policy under the First Amendment:

(1) the mail officer in any given day has unbridled dis-

cretion to exclude a particular magazine, since the Policy

does not provide any guidelines for determining whether a

material is “sexually explicit;”

(2) the Policy is overbroad, since it would exclude

materials that contain frontal nudity, even though the mate-

rials do no contribute to prison violence or the sexual har-

assment of female detention officers;

(3) the Defendants’ stated interest in preventing sexual

harassment is not true, since female detention officers are

“desensitized” to sexual harassment by inmates; and

(4) there are other less restrictive alternatives than the

Policy to preventing fights between inmates or their sexual

harassment of female guards.

Both Defendants and Plaintiff have filed a motion for

summary judgment. Neither party addresses Plaintiff’s

Equal Protection and Due Process claims under the Four-

teenth Amendment and his claims under the Arizona State

Constitution. However, at the hearing on the motions the

parties indicated that the court’s ruling on their motions

would be case dispositive.

55a

II. DISCUSSION

A. STANDARD OF REVIEW

Summary judgment is appropriate where no genuine

issue of exists as to any material fact and where the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). In determining whether to grant summary

judgment, the court will view the facts and inferences in the

light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574,

577 (1986).

However, the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment. The

requirement is that there be no genuine issue of material

fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

48 (1986). A “material fact” is any factual dispute that

might affect the outcome of the case under the governing

substantive law. Id. at 248. A factual dispute is “genuine”

if the evidence is such that a reasonable jury could resolve

the dispute in favor of the nonmoving party. Jd.

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