“There is no empirical evidence that suggests censorship reduces crime, so why use it as further criminal punishment? After 20 years in prison, it is my experience that censorship (including banning of erotica) promotes criminality. Anger and despair among men about to be paroled is not a good thing. Trust me. As it goes in here, so it goes for America.”
Locked Down and Locked Out: An Inside View of Prison Censorship
I have been a prisoner in Texas for 20 consecutive years. I’ve litigated more than half a dozen First J. Amendment cases in the U.S. District Courts for the
Southern and Eastern Districts of Texas and the Fifth Circuit Court of Appeals, and have sought the right to litigate in the U.S. Supreme Court. I’ve sued for the right to criticize prison officials in my outgoing mail to nonprisoners, for the right to edit a newsletter sent to nonprisoners, for the right to send and receive mail to and from nonprisoners without it being secreted by prison censors for weeks on end without due process or notice, and more. Contrary to government and media mischaracterization, the constitutional right to subscribe to and read Penthouse has little to do with a man’s right to masturbate and everything to do with freedom in America.
California has followed the federal government, Minnesota, and several other states by banning from prisons any depiction of nudity. Policies recently instituted in California and Minnesota are especially egregious (more on that later). There are many dubious questions concerning prison censorship, such as who is to define “nudity,” and how? Should an entire publication be banned because of a few pages of content that are adjudged “offensive” in only the prison context? The most important of these questions is whether all Americans should permit constitutional freedoms — including those practiced today in prisons and other institutions — to be suddenly taken away by local, administrative fiat.
If the answer is yes, what is the rationale justifying such censorship? How does society benefit? It is my experience that censorship in prison (including banning of erotica) promotes criminality and causes an irreparable separation from society, culture, news, and information, and ultimately promotes despair. There is no empirical evidence that suggests censorship reduces crime, so why use it as further criminal punishment?
We send people to prison as punishment, not for punishment. These questions bear upon your life almost as much as upon the prisoners who must endure the unexpected loss of fundamental constitutional rights. As go our social institutions, governed by public policy, so goes America. Censorship in any form, especially against those who are stripped of every other freedom — whether in a VA hospital, old folk’s home, mental ward, or a prison — denigrates the Constitution and thus your freedoms. The penitentiary (especially for minorities) is increasingly becoming a major social institution as incarceration rates skyrocket. Anger and despair among men about to be paroled is not a good thing. Trust me. As it goes in here, so it goes for America.
While many believe in harsh punishment as a deterrent to crime (I do, because I’ve seen firsthand how it works), we cannot allow the destruction of the Constitution to become a means of punitive treatment. Hate the criminal, but do not hate the Constitution. Whether we like it or not, prison today is just too big a part of society to turn back the clock, separate that strand out again, and deny prisoners the basic First Amendment freedoms enjoyed by all.
I’ve never had to sue for the right to receive my subscription copies of Penthouse, because the courts decided that matter in Texas years ago. In 1978 a class-action First Amendment lawsuit, Guajardo v. Estelle, challenged the constitutionality of Texas prison-mail rules. A district court ruled that “[b]efore delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental to prisoner rehabilitation because it would encourage deviate, criminal sexual behavior.” As go our social institutions, so goes America, the court implied.
Guajardo v. Estelle was settled at a unique point in U.S. history. The liberalization of our prisons that started in California in the 1960s blazed across America. Not coincidentally, prison reform accompanied the sixties’ civil-rights movement. Instead of locking up folks and throwing away the key, decency, education, and fair treatment became the watchwords of prison reform. It was a change in mindset and social policy that cost a lot of mean people their jobs, created jobs for many more people, and made prison administration more transparent, more subject to the rule of law, more humane. First Amendment rights were extended to prisoners.
Prison administrators took a new approach: It didn’t matter what some convict said about them in his letters so long as he wasn’t planning an escape or some other criminal scheme. Once existing as closed mini-societies, prisons became mini-cities of guards, prisoners, support and maintenance staff, educators, social workers, and medical personnel.
In 1973, in Meacham v. Fano, Cruz v. Beto (another Texas case), and a bunch of other litigation, the U.S. Supreme Court decided it was time for the penitentiary to move into the twentieth century. Now the division between society at large and the penitentiary has blurred in all the right ways. And no, it never became a Holiday Inn here behind bars.
In Texas, Guajardo v. Estelle meant bare-knuckled prison censorship was supposed to have ended. A prisoner could now correspond with more than just the ten people on his visiting list. All forms of political and religious and erotic books and magazines were now allowed. The only exceptions were discussions of escape or prison revolt, criminal scheming, and depictions of sex that violated state law (S&M, bestiality). Up to five pages of any publication containing such material were clipped. If more than five pages were judged clippable, then the entire publication was denied, subject to appeal. Penthouse is exempted from even these categories of censorship. Until June 2003, not one page was clipped from any issue since the Guajardo consent decree, and certainly no editions had been banned.
It’s not a perfect world, of course, and pockets of resistance, and even of judicial confusion, remain. I have had letters from all over the world secreted by the censors for review for up to six weeks without notice or due process before I was allowed to receive them.
Sometimes a petty tyrant on the Mail System Coordinators Panel, which reviews incoming publications, will search meticulously for that sixth page of “objectionable ” material — often found in a microscopically small ad.
Sometimes an MSCP member will decide on an ad hoc basis that one or another discussion of racial matters in the news somehow “threatens the safety, security, or well-being of staff, inmates, or the institution.” Sometimes an employee will recognize the convict addressee’s name and will fabricate a reason for denying his mail, in retribution for a previous lawsuit, grievance, or appeal of a denied piece of mail.
In all such cases of censorship, the MSCP or mail-room employee is required to check a box on a form created under the Guajardo rules that states he has determined that the publication in question was “published solely to cause a disruption in the prisons.” The Guajardo decision’s injection of the word solely was a fail-safe roadblock to prevent bureaucratic grunts from censoring reports on current events or social policy, as well as erotica, that have no bearing on prison administration or safety. Some mail Nazis check the box anyway.
The Texas mail and publication rules are not perfect, but they are adequate, especially if enforced exactly as written. Texas prison administrators are notoriously defensive of their turf, however, and when they discovered I was to write this article for Penthouse, they raided my cell and confiscated my typing ribbons and other gear. They created a major disciplinary case and initially sentenced me in prison court to an additional year behind bars “for writing articles for publication.” Saddam lives!
Next, the July 2003 edition of Penthouse was banned from Texas prisons, the first such censorship in 25 years. I was told by prison mailroom staff, “You’ll never receive this magazine again.” The ban is a violation of the Guajardo consent decree and court order.
My story was widely reported by the San Antonio Express-News, the Associated Press, the Washington Times, WorldNetDaily.com, and other media, so I’ll spare readers the details here, except to say that the ACLU has taken my case. Like Texas’s sudden reversal, California and Minnesota have jumped off a bridge in censoring Penthouse and other magazines and correspondence. Prison censorship is an ongoing problem everywhere, mainly because of human nature and the corrupting influence of power. Censorship is thus wrapped up with all the rest of the crap that goes with incarceration and other institutional settings in which wage slaves wield great power over strangers.
California has joined the prison-censorship parade but won’t get away with it. That state tried but failed to justify its censorship policy in the name of “security,” as the U.S. Bureau of Prisons and its state copycats have done. Even Minnesota simply pronounced Penthouse to be disruptive to security, with no evidence. While the federal courts of ten defer to other federal authorities (e.g., U.S. Bureau of Prisons), they typically scrutinize similar state actions under the purview of the Fourteenth-Amendment because of the history of civil-rights violations within the states.
Sure, the California Department of Corrections’ ban contains the word security — as a formality — but the ostensible reason behind the ban is “reducing sexual harassment of female officers and avoiding a hostile work environment.” CDC spokesman Russ Heimerich told the Los Angeles Times, “This is not a question of the inmates enjoying a little private time in their cells…. The Department worries about sexual harassment lawsuits…. We’re vulnerable…. We had to take action.”
Ah, the truth at last! “We’re vulnerable ” to the witches. Well, now the CDC is likewise vulnerable to thousands of civil-rights claims, free-market claims, and First Amendment lawsuits by publishers and defenders of the Constitution. The courts need to be made aware of the history of California’s and Minnesota’s rights abuses. Just because some official invokes the word security doesn’t mean that’s the real reason for a ban, particularly when the history behind such bans points to administrators merely covering their asses.
Most alarmingly, CDC enacted its ban in response to nearly $2 million in class-action judgments paid out to female guards for sexual assault and harassment by fellow male guards, including one of the male guards’ local union leaders, according to California newspaper reports. Nothing like the sting of budgetary disaster combined with radical-feminist fury to destroy the Constitution!
The CDC overreacted prematurely, enacting a blanket ban on Penthouse that fails the evidentiary standard of a “narrowly tailored, least restrictive means” of giving the female guards what they want (i.e., an impossibly sterile environment in the penitentiary). Instead of requiring wide-ranging censorship, the CDC prisoner disciplinary code employs several rules that enforce common decency, punish indecent exposure and open masturbation, and discipline prisoners who forge romantic or physical relationships with other prisoners.
Such rules are a sufficient arsenal for all prison guards in Texas. Women were first placed on the cell blocks as guards in 1985 after winning the right to work here. Instead of the harm most folks thought would befall female guards, love affairs broke out all across the Texas prison system. Far from being harassed, most female guards are adored by overly protective male staff (especially the show-offs) and lonely prisoners. Broom closets, catwalks, and hidden cubby-holes have become hook-up havens.
While there are isolated cases of sexual assault and harassment, the biggest problem for administrators remains consensual sexual relations between female guards and prisoners. For many of us not so lucky to be involved at the moment, there is no problem abiding by the rules while also getting the “sole groove” on. In my 20 years, no guard has seen me masturbate, thus my disciplinary record is clear. Plus, I have received Penthouse like clockwork each month, as have thousands of others. The system really worked.
The CDC ban on Penthouse is not only unconstitutional but also inhumane. To demonize the normal drives of a man is to turn that man from criminal into animal in the eyes of the public, which then permits him to be treated as an animal. So treated, so he becomes. This practice of manipulating criminal justice to abuse an entire class of men is merely one more instance of political propaganda and demagoguery. It puts the lie to our claim of being “civilized.”
What are the implications of banning porn in prison? Consider one study published in the Journal of Men’s Studies. Fantasy is a constructive outlet, the study found, decreasing the occasions of unprotected anal sex. As we all know from the AIDS epidemic, disease does not contain itself within any one group of people. It inevitably spills into others. As go our institutions, so goes America.
For heterosexually hardwired prisoners like me who will never consider sticking it in another man’s butt, affirmation of our desires and passions is necessary. Penthouse serves that purpose well. Take it away, and some guys will eventually turn to an alternative, even if temporarily or experimentally — a dangerous choice with consequences for the general population. Censorship causes blowback.
For me, Penthouse is not for mere sexual release. The magazine has kept me in touch with culture, society, music, sports, education, politics, and more.
Long ago I decided that I was going to make the most of my incarceration. I was going to maximize this time to become the whole person I was not when I was sent to prison. Over these 20 years, I have earned two master’s degrees, completed enough graduate hours in history for my Ph.D., edited three publications, learned how to litigate civil suits in federal court, and begun a writing career. Penthouse has been with me each step of the way. It has helped me to do 20 years of hard time in the most constructive way possible, in one of the worst prison systems in the world. Prison officials should be grateful for Penthouse; they should not be making war on it and those who read it.
Many prison administrators actually understand all these aspects of prison life. So do marketers. Paper Wings of Baltimore, an aftermarket seller of publications to institutions and individuals, is a member of the American Correctional Association. The ACA is an accreditation organization comprising jail and prison members and vendors. The U.S. government recognizes the ACA’s accreditation ratings for self-policing members for the purpose of assuring high standards in prison facilities and humane treatment of prisoners in all jurisdictions.
There is, then, such a thing as an enlightened view of men’s magazines in the prison setting, and ACA is one more facilitator in the legal, cooperative process of making sure that America’s prisons are safe and sane. The insanity begins when some folks think they can ignore the First Amendment, blindly presuming that limiting the constitutional rights of some does not, in the end, affect all Americans.
Prison Censorship has not changed a lot over the decades, which may or may not seem reasonable, depending upon one’s view of a prison’s purpose. A much more recent article on the relevant “Legal News” talks about the variable extremes still present, in fact. Puritanical views on masturbation suddenly find themselves in bed with all sorts of completely different “moral” reasons to protect prisoners from themselves. Sure. And if we take condoms away from teenagers, they will stop having sex. … Sometimes you really wonder about people, do you not?
