SAN FRANCISCO (AP) -- When female guards in an Arizona jail
complained that male inmates were taunting them with magazine
centerfolds, its famously tough sheriff banned all nude pictures --
from Hustler to art books.
On Tuesday, the Maricopa County policy, described by the
county's lawyer as the probably the strictest in the nation, was
upheld by a divided 9th U.S. Circuit Court of Appeals.
In a 7-4 ruling, the court said a prohibition on pictures of
frontal nudity was a reasonable measure to stop sexual harassment
and improve security, and didn't violate free expression.
Dissenters said a ban that included Michelangelo as well as Larry
Flynt was too broad and had little to do with sexual harassment.
Daniel P. Struck, a lawyer for the county and Sheriff Joseph
Arpaio, said the ruling would "set the standard as to what's
allowable by prisons and jails in the country."
Arpaio has earned the nickname "America's toughest sheriff" --
and criticism from civil libertarians and the Justice Department --
for such highly publicized moves as banning coffee and cigarettes,
housing inmates in tents and dispatching inmates, even female
inmates, in old-style chain gangs to cut weeds.
His jail system has
6,500 inmates serving sentences or awaiting trial, making it one of
the largest in the country.
The ban, imposed by Arpaio in 1993, extends to photos and
drawings of frontal nudity. A lawsuit was filed in 1995 by Jonathan
Mauro, an imate who was denied a copy of Playboy magazine while
U.S. District Judge Robert Broomfield ruled in favor of the
county, but the ruling 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.
In Tuesday's ruling, Judge Thomas Nelson said the sheriff was
entitled to take reasonable steps to protect guards, even if some
innocent material also was covered by the ban. He said there was a
clear relationship between the possession of sexually explicit
materials and sexual harassment.
In a dissent, Judge Andrew Kleinfeld there was evidence that the
real purpose of the ban was to punish inmates, many of whom have
not been convicted of crimes. He cited Arpaio's 1995 interview with
Penthouse in which the sheriff said, "when you go to jail you
should have to give up certain things. ... Jail means punishment."
Nicholas Hentoff, Mauro's lawyer, could not be reached for
comment after Tuesday's ruling. Repeated calls to him were answered
by a message saying his voice mail system was full.