Prison Bans Gay National Magazines

Federal court says prisoner’s request for Out and the Advocate not valid

U.S. District Judge Allen Sharp ruled on March 31 that a gay inmate’s constitutional rights were not violated when Indiana prison officials denied his request to allow him to subscribe to The Advocate and Out magazines while incarcerated at Westville Correctional Facility.

Finding that the prison’s superintendent, Eddie Buss, had demonstrated a rational connection between prison security concerns and the exclusion of “blatantly homosexual material” from the prison, the court granted the defendant’s motion for summary judgment.

Harold Willson, III, a gay prisoner, submitted several requests to get subscriptions to the two magazines, which he described as the gay equivalents of Time and People. While conceding that neither magazine is obscene or depicts sexual activity, the prison officials nonetheless invoked a general policy against allowing “blatantly homosexual material” into the prison in denying Willson’s requests.

After he was discharged from prison, Willson sued Buss in his official capacity, claiming a First Amendment violation.

Buss testified in his pre-trial deposition that the rationale behind the rule was that inmates perceived as gay by others become targets for violence, extortion and other disruptive activities. The superintendent maintained that it did not matter that Willson was already known by many other prisoners to be gay, because once the magazines got into the prison, they would undoubtedly circulate, and other inmates who borrowed the magazines or showed interest in them could become targets for violence. Buss contended that his concern was not with Willson’s sexual orientation, or even the gay content of the publications, but rather with preserving order in the prison and protecting prisoners from homophobic attacks.

In his own deposition, Willson pointed out that as an openly gay prisoner he had not been subjected to the kinds of attacks Buss had predicted. He forcefully argued that his own constitutional rights should not be abridged out of hypothetical concern about other inmates.

However, his argument was unsuccessful in front of Sharp.

The judge noted that the Supreme Court had “given a decent judicial burial” to Bowers v. Hardwick, the 1986 case that upheld the Georgia sodomy statute, in Lawrence v. Texas, the 2003 case that overturned a similar law in Texas, but found that this was not relevant here, as even Willson’s attorney conceded.

The issue was not whether homosexual conduct in prison was legal, but rather whether the prison had a sufficient justification in terms of maintaining prison discipline for barring publications with gay content.

Sharp cited prior federal decision holding that constitutional rights enjoyed in society may be abridged in the context of prison, when doing so is rational for maintaining legitimate prison goals. The judge found that the concerns Buss was advancing were rational, and backed up by prior federal rulings on homosexual publications in prisons. 

Most of the prior cases, however, involved publications of a more sexually-oriented nature, making this case noteworthy because The Advocate and Out are focused on news and other general interest features.

Sharp also rejected Willson’s argument that the rule against “blatant homosexual material” was unconstitutionally vague, or that the court could ignore the impact or “ripple effects” that the presence of gay material might have in the prison context. He concluded that this was not an anti-gay regulation, per se, but rather a neutral regulation adopted to protect prison security, motivated not by anti-gay animus but rather by concerns about the health and safety of all prisoners.

Westville’s policy of housing inmates in open dormitory settings and the large number of sexual offenders in its population were both factors in Sharp’s determination.

In addition, Sharp found that there was no clearly established binding judicial precedent supporting Willson’s claim that Buss could be construed to have an obligation to act in accordance with. As a result, the superintendent would enjoy qualified immunity against any liability for his actions in the matter in any event. That factor, in the judge’s view, further justified the grant of summary judgment against the plaintiff.

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