Tobias Payton v. Chris Cannon

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1694
TOBIAS PAYTON,
Plaintiff-Appellant,
v.
CHRIS CANNON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 5955 — Harry D. Leinenweber, Judge.
____________________
SUBMITTED OCTOBER 29, 2015 — DECIDED DECEMBER 1, 2015
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Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
POSNER, Circuit Judge. Staff of Illinois’s Stateville Prison
intercepted a number of pornographic magazines that in-
mate Payton had ordered. These magazines have such
names as “Bootylicious,” “Black Video Illustrated,” “Players
Nasty,” “Black Tail,” “Adam Film World Guide Porn Stars,”
“Tight,” and “Naughty Neighbors.” They mainly contain
photographs of naked or scantily clad women, but some also
2 No. 14-1694
contain photographs of sexual acts. The magazines are ad-
vertised on the Internet, and we doubt that they would be
classified as obscene—nor does the prison so designate
them. But the prison does forbid the inmates to receive any
magazine that “includes sexually explicit material that by its
nature or content poses a threat to security, good order, or
discipline or it facilitates criminal activity” or is “otherwise
detrimental to security, good order, rehabilitation, or disci-
pline or it might facilitate criminal activity or be detrimental
to mental health”—and the magazines we’ve listed, along
with many similar ones, are deemed by the prison to be
within the prohibition.
The plaintiff claims that the prohibition violates his First
Amendment rights, for those rights include access to, as well
as creation and dissemination of, oral and written communi-
cations, including magazines. The defendants, however—
members of the prison staff who conduct the interceptions—
moved for summary judgment on the basis of a statement by
a former warden of Stateville, Marcus Hardy (warden from
2009 to 2012, and one of the defendants in the present case),
that
“publications or photographs that involve any sort of nu-
dity” are a danger in the prison because of the possibility
that “(1) the inmates will engage in black-market trading
for the publications and photographs; (2) inmate-on-
inmate violence and intimidation increases, especially
when these publications become lost, stolen, and/or when
there is a perception that the publications are not being
fairly traded or shared; and (3) female employees at the
maximum security correctional centers [such as Stateville]
are more often objectified and harassed by the inmate
population when the inmates are allowed to receive nude
No. 14-1694 3
publications, nude photographs and nude prints. In my
experience, this has included, but not been limited to Stat-
eville having to address instances of inmates openly pleas-
uring themselves [i.e., masturbating] before female correc-
tional officers during rounds.”
“When a prison regulation impinges on inmates’ consti-
tutional rights, the regulation is valid if it is reasonably relat-
ed to legitimate penological interests.” Turner v. Safley, 482
U.S. 78, 89 (1987). This is true even in the context of printed
matter. “Prisons have great latitude in limiting the reading
material of prisoners.” Mays v. Springborn, 575 F.3d 643, 649
(7th Cir. 2009). Great latitude is not the same as unreviewa-
ble discretion, however, and the ex-warden’s statement is
the only evidence submitted by the defendants concerning
harm to the prison from materials that the defendants want
to forbid to the prisoners. But the plaintiff produced no evi-
dence contrary to the warden’s. Nor did he point out that the
warden’s statement appears to be based on impression ra-
ther than on data.
The plaintiff does argue that the prison staff should be
required to read every issue of every magazine (rather than
just six consecutive issues, as the staff is currently required
to do) that it intercepts before deciding to add the magazine
to the censored list; but that would be impractical. He also
argues that the real reason for the prison’s policy is that the
staff dislikes pornography. This strikes us as an implausible
generalization, though doubtless some staff (and not only
the women) do dislike or disapprove of pornography; in any
event, he provides no evidence. He has, in short, made no
case against the district judge’s grant of the defendants’ mo-
tion for summary judgment. The suit was therefore rightly
dismissed.
4 No. 14-1694
That said, we think it important to note for future refer-
ence that the ex-warden’s statement, though plausible and
thus sufficient for judgment given the absence of counter-
vailing evidence, is not ironclad. Why the prison should be
concerned if the prisoners swap these magazines is nowhere
explained; nor is it suggested that arguments over sharing
would cause a nontrivial increase in violence and intimida-
tion. And as for inmates masturbating in front of female
staff, it seems on the one hand a practice that male inmates
can be expected to engage in even if they have no access to
nude photographs and on the other a matter calling for swift
punishment of the offenders.
As with so many behavioral issues touched by American
law, one would like to see Stateville’s ban on prisoners’ ac-
cess to photographs and print analyzed scientifically. That
would not be impossible. There is an extensive academic lit-
erature bearing on the issue, some of which challenges the
intuitions of prison wardens and staff. Illustrative is Corey
D. Burton & Richard Tewksbury, “Policies on Sexually Ex-
plicit Materials in State Prisons,” 24(2) Criminal Justice Policy
Review 222 (2011), which found “little or no existing evidence
to support the extension of findings of research from the
general community [research that, as the article notes, tends
to find a positive correlation between use of pornography
and aggressive or even violent behavior toward women] to
the behavior of prison inmates.” Other studies include Mi-
chael Castleman, “Does Pornography Cause Harm? Porn
Causes No Measurable Harm,” Psychology Today, April 27,
2009, www.psychologytoday.com/blog/all-about-sex/200904
/does-pornography-cause-social-harm (visited November 30,
2015); Christopher J. Ferguson & Richard D. Hartley, “The
Pleasure is Momentary … the Expense Damnable? The In-
No. 14-1694 5
fluence of Pornography on Rape and Sexual Assault,” 14
Aggression & Violent Behavior 323 (2009). According to still
another study, “the data reported and reviewed suggests …
an inverse causal relationship between an increase in por-
nography and sex crimes.” Milton Diamond, “Pornography,
Public Acceptance and Sex Related Crime: A Review,” 32
Int’l J. Law & Psychiatry 304 (2009).
Stateville’s policy may be ineffectual—and it is costly.
Staff is deflected to skimming boatloads of pornographic
magazines. Prisoners are denied access to reading material
that would lighten slightly the burden of imprisonment in a
maximum-security prison and might reduce rather than in-
crease disciplinary problems at the prison. The Illinois De-
partment of Corrections, which owns and administers Illi-
nois state prisons, might be well advised to study Stateville’s
pornography policy—and with an open mind.
Nevertheless, for the reasons stated earlier in this opin-
ion, the judgment of the district court is
AFFIRMED.