Court upholds Arizona jail's ban on nude pictures

SAN FRANCISCO - An Arizona jail system's ban on nude pictures is a reasonable effort to protect female guards from sexual harassment and does not violate free expression, a federal appeals court ruled Tuesday.

The 7-4 ruling by the 9th U.S. Circuit Court of Appeals upheld the 1993 policy by Maricopa County Sheriff Joseph Arpaio that had been ruled unconstitutional by a three-judge panel last year.

Dissenting judges sided with last year's ruling, which said the county had gone too far with a policy that would outlaw possession of National Geographic and classic art works as well as Playboy and Hustler. But the court majority said the policy, while not fine-tuned, was "reasonably related" to legitimate government purposes.

"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," said the opinion by Judge Thomas Nelson.

He said harassment of female guards dropped sharply after the ban was imposed. Previously, inmates regularly taunted guards with nude pictures from magazines, he said.

Daniel P. Struck, a lawyer for Arpaio and the county, said the ruling would "set the standard as to what's allowable by prisons and jails in the country." He said the ban was probably the strictest in the nation.

A prison system's narrower ban on images of homosexuality, sadomasochism, bestiality and sexual situations involving children was upheld by the Supreme Court in 1989.

Nicholas Hentoff, the lawyer for an inmate who challenged the Maricopa County policy, could not be reached for comment.

The ban applies to photos and drawings of frontal nudity. It applies to 6,500 inmates serving sentences or awaiting trial in the county's jails. The suit was filed in 1995 by Jonathan Mauro, who was then awaiting trial on financial fraud charges and was denied a copy of Playboy magazine.

Mauro later pleaded guilty and was sent to prison.

U.S. District Judge Robert Broomfield's ruling in favor of the county was overturned in July 1998 by a three-judge appellate panel, which said the ban could be justified only if the county showed that any type of nude picture in jail was likely to cause problems. But a majority of the entire court voted to rehear the case before a larger panel.

Inmates have a constitutional right to receive sexually explicit communications. Nelson, in Tuesday's ruling, said the jail policy does not violate that right because it allows pictures of clothed women and sexually explicit letters.

In one dissenting opinion, Judge Mary Schroeder said the county's policy was not justified because it would prohibit "a photograph of a nude Christ painted by Michelangelo," in addition to pornography.

Judge Andrew Kleinfeld, in a separate dissent, said there was evidence that the real purpose of the ban was to punish inmates, many of whom have been convicted of no crimes.

He cited a 1995 interview in which Arpaio, when asked about the policy, observed that "when you go to jail you should have to give up certain things. ... Jail means punishment."

Kleinfeld noted that inmates could not have read the interview because it was published in Penthouse.

The case is Mauro vs. Arpaio, 97-16021.

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