An article by David M. Shapiro published by The George Washington Law Review on “Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny” exposes inconsistencies and illogical practices regarding the restriction of reading matter in prisons, and mentions Updike in so doing.
Abstract
The Supreme Court declared thirty years ago in Turner v. Safley that prisoners are not without constitutional rights: any restriction on those rights must be justified by a reasonable relationship between the restriction at issue and a legitimate penological objective. In practice, however, the decision has given prisoners virtually no protection. Exercising their discretion under Turner, correctional officials have saddled prisoners’ expressive rights with a host of arbitrary restrictions—including prohibiting President Obama’s book as a national security threat; using hobby knives to excise Bible passages from letters; forbidding all non-religious publications; banning Ulysses, John Updike, Maimonides, case law, and cat pictures. At the same time, the courts have had no difficulty administering the Religious Land Use and Institutionalized Persons Act (RLUIPA), which gives prisons far less deference by extending strict scrutiny to free exercise claims by prisoners. Experience with the Turner standard demonstrates that it licenses capricious invasions of constitutional rights, and RLUIPA demonstrates that a heightened standard of review can protect prisoners’ expressive freedoms without compromising prison security. It is time for the Court to revisit Turner.
Shapiro noted that “A prison allowed magazines such as Playboy and Maxim but prohibited works by John Updike as salacious. . . .”
“No to John Updike, Yes to Porn”
“The following example, and those that follow, are instances in which courts struck down speech restrictions under the Turner standard. Again, not all courts that have applied Turner treat it as a rubber stamp.228 These examples, however, illustrate restrictions that prison and jail authorities thought they could impose under the legal standard, even if incorrectly. While these restrictions ultimately did not survive scrutiny, the fact that officials tried to implement them at all provides further support for the view that Turner’s ability to deter constitutional violations at the outset is limited.
In Cline v. Fox, 229 the district court considered a purge of a prison library, which resulted in the removal of 259 books, which, in the view of the prison, constituted ‘obscene material.’ 230 Prison staff were instructed to read every book in the library and ‘to eliminate any book that contained language that might arouse the reader.’ 231 Books purged from the shelves included ‘William Styron’s Sophie’s Choice, Gore Vidal’s Myra Breckinridge, and a number of works by John Updike.’ 232 The court noted that ‘[t]he prohibition also applies regardless of the context of the depiction or the content of the work as a whole. Therefore, literary classics like George Orwell’s 1984 and religious texts like the Bible technically violate this regulation.’ 233 Meanwhile, prisoners were allowed to receive commercial pornography, including such magazines as Playboy and Maxim. 234 Based on this inconsistency, the court struck down the regulation under Turner. 235 [. . .]
from The George Washington Law Review Vol. 84:4 (July 2016). 972-1028.
