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Pennsylvania Prison Porn Ban Upheld

Justices say not enough evidence presented of porn's harmlessness

Pennsylvania Prison Porn Ban Upheld

HARRISBURG, Penna.—The Pennsylvania Supreme Court today upheld a Commonwealth Court's ruling that the Pennsylvania Department of Corrections was within its proper powers in prohibiting inmates' possession of sexual material.

At issue was a Department of Corrections administrative order (DC-ADM) 803-1, which declared that, "[i]n order to assist with rehabilitation and treatment objectives, reduce sexual harassment and prevent a hostile work environment, inmates will not be permitted to receive or possess pornography," which the rule defined as "materials in which the purpose is sexual arousal or gratification" or material containing nudity, which is defined as "showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple."

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Inmates were required to either turn in such material to prison officials or mail it out of their respective institutions by Jan. 1, 2007, after which date any such materials found in an inmate's possession would be confiscated and the inmate charged with misconduct. However, a later amendment to the regulation stated that if the material had "significant literary or educational value," it might be approved for the inmate's use "on a case by case basis."

Inmate Shannon Brittain, a convicted rapist, acting as his own attorney, later challenged the regulation as lacking any "legitimate penological purpose," and attached to his petition affidavits from himself and six other inmates asserting that the sanctioned material "does not adversely affect their personal rehabilitation or treatment, does not cause them to sexually harass others, and does not cause them to create a hostile work environment for prison employees."

The Department of Corrections ["Department"] disagreed (big surprise there), claiming that the ban on material depicting nudity helped with its goal of rehabilitating inmates and with inmate treatment objectives; that it prevented a hostile work environment for prison employees; that it prevented employees and inmates from being "objectified"; that allowing the material would be counterproductive in treating sex offender inmates; that it would "foster inappropriate sexual desires among inmates"; and claimed that the materials were "often a precursor to sexually offending behavior." They submitted "verifications" of those objections from a licensed psychologist and a prison unit manager.

In response, Brittain demanded "strict peer-review scientific-evidence" supporting the ban, and requested a preliminary injunction preventing the porn ban from taking effect.

Interestingly, the Commonwealth Court took Brittain's petition seriously, ruling that the Department had "failed to demonstrate a valid, rational connection between the prohibition of materials that depict nudity, and the rehabilitation and treatment of inmates" and that there was a "genuine issue of material fact as to whether a rational connection exists between the prohibition on viewing materials containing nude images and prisoner rehabilitation." The Commonwealth Court therefore denied both the Department's and Brittain's petitions for summary relief, leaving the Department to appeal to the Pennsylvania Supreme Court.

The state's high court reviewed both petitions "de novo," but decided that Brittain's affidavits were insufficient evidence upon which to overturn the Department's anti-porn regulation, and denied Brittain his "day in court" to present expert testimony as to the invalidity of the ban.

"Brittain’s assertions and his submission of statements of fellow inmates, even if believed, failed to demonstrate that the Department unreasonably exercised its professional judgment in concluding that a ban on pornography will advance the goals of rehabilitating prisoners and provide a safer workplace," wrote Associate Justice Max Baer. "As there were no genuine issues of material fact, and the Department demonstrated its clear entitlement to relief as a matter of law, summary relief should have been granted in its favor."

"Recognizing the presumptive reasonableness of the prison policy, and that the burden is on the prisoner to disprove the prison regulation’s validity, we concluded in Payne [v. Commonwealth] that the prisoners did not even attempt to satisfy this burden," Justice Baer continued. "We clarified that 'the question is not whether the curtailment of distribution of obscene materials will remedy the aforementioned institutional concerns, but whether the Department reasonably believed that it would do so.' Concluding that the Department established the reasonableness of its beliefs, and there was no evidence to the contrary, we rejected the inmates' challenge. We reach the same conclusion here."

The state Supreme Court also referred to the U.S. Supreme Court's decision in Turner v. Safley, which held that, "when a prison regulation impinges upon an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."

"We ... conclude that the Commonwealth Court in the instant case afforded too little deference to the professional judgment of the prison officials," Justice Baer concluded, "and failed to recognize that Brittain’s motion for summary relief did not raise genuine issues of material fact essential to his cause of action, which required resolution by a jury."






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Mark Kernes

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