Pornography behind bars

Pornography behind bars - Cornell Law Review September,...

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Cornell Law Review September, 2000 Note *1702 PORNOGRAPHY BEHIND BARS Stacey A. Miness Copyright © 2000 Cornell University; Stacey A. Miness Introduction . ................................................. 1702 I. Background on Prisoners' Rights . .............................. 1704 II. Background on Prisoners' First Amendment Rights . .............. 1707 A. Procunier v. Martinez . ..................................... 1708 B. Turner v. Safley . .......................................... 1711 C. Thornburgh v. Abbott . ...................................... 1714 III. Prisons, the First Amendment, and Sexually Explicit Material . . 1718 A. Amatel v. Reno . ............................................ 1718 B. Mauro v. Arpaio . ........................................... 1723 IV. A More Protective View of Prisoners' Rights . .................. 1726 A. Reversion to Intermediate Scrutiny . ........................ 1727 B. Application of Turner . ..................................... 1735 1. Mauro I . ................................................... 1736 2. Additional Considerations . ................................. 1738 Conclusion . ................................................... 1741 Introduction Sex sells. This tenet of advertising reflects the power of all things sex-related in American society. Particularly valued is the right to access sexually explicit material, and discussion of the scope of this right evokes visceral reactions in both advocates and opponents of pornography. The debate over pornography's position in the marketplace of ideas becomes even more heated when that marketplace lies within the confines of the United States penal system. The question of whether prisoners should retain the right to view sexually explicit publications implicates First Amendment [FN1] freedoms, rights which are usually among those most fervently cherished by the American people and most fiercely protected by the courts. [FN2] When *1703 those rights belong to prisoners, however, legislatures and judges seem to place less value on such freedoms. Prisoners "are denied reading material deemed objectionable by their captors, exposed to retaliation for expressing opinions at odds with those of their jailers, refused access to the news media, punished for possessing 'radical' views, and rewarded for renouncing them." [FN3] Although citizens acknowledge that lawbreaking may result in imprisonment and may jeopardize the privilege to enjoy certain First Amendment rights, a government-sponsored retraction of those rights may simply be unconstitutional. [FN4] Furthermore, the consequences of imprisonment are of particular significance in the United
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States, the nation that "leads the world in per capita incarceration." [FN5] Thus, the debate over which rights are conditioned upon one's adherence to the law continues. [FN6] One view within this debate is that criminals are entitled to rights similar to those that the general population enjoys. [FN7] The opposing view is that citizens who break the law are at the
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Pornography behind bars - Cornell Law Review September,...

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