Last year, supermax inmate Mark Jordan, with the aid of law students from the University of Denver, persuaded a federal judge to throw out a bad rule that prevented prisoners from "acting as a reporter" or publishing under a byline. Prisoners who did so faced censorship of their mail and time in the hole, as Jordan found out for himself when he tried to report on prison conditions in an obscure magazine.
Emboldened by that victory, Jordan was back in federal court last week, acting as his own attorney, in an effort to challenge the Bureau of Prisons' ban on publications that offer nudity or sexually explicit material. Technically, he wasn't "in" court -- shackled and confined to a small room, he examined witnesses and testified himself by a video link to the U.S. Pentientiary Administrative Maximum (ADX) in Florence, where he's serving time for bank robbery and murder.
Coverage of the case was sparse and tended to focus on the judge hearing the matter: Edward Nottingham, the much-beleaguered "Judge Naughty" whose off-bench activities, from a purported spending binge at a downtown strip club and alleged erotica on his own computer to other rumored unsavory hijinks, have been fodder for divorce-court depos and splashy news stories. The notion of Nottingham having the final word on whether Jordan can receive Divas and Lovers: The Erotic Art of Studio Manasse, The Kama Sutra and other edifying tomes proved to be too tasty an irony for some wags to ignore.
However, the serious First Amendment issues involved in the case, including the BOP's assertion that erotic material interferes with rehabilitation, haven't received any press consideration at all. Nottingham issued a detailed ruling on July 11, rejecting Jordan's claims even as he ceded several key points of the argument.
Nottingham noted that ADX prisoners are allowed to receive and write sexually explicit letters. They have access to basic-cable TV, including some programs that would be banned by the BOP if the same material came through the mail. "Inmates are permitted, and sometimes instructed by medical personnel, to masturbate privately in their cells," the judge observed. (This is a departure from Colorado state prisons, by the way, where spanking the monkey can be cause for punishment.)
Yet the judge gave great weight to the testimony of the prison's expert witness, who insisted that porn, whether hardcore or Kama Sutra-soft, can be a detriment to men trying to walk the straight and narrow, particularly sex offenders. Jordan is no sex offender, but Nottingham mused that introduction of "contraband" porn to some prisoners might eventually find its way to others. The only point Jordan won had to do with the authorities' refusal to retain rejected publications so that the rejection could be properly appealed.
Jordan can appeal, too, of course, but the courts have given great leeway to corrections officials in how they run their joints. For now, Jordan will have to manage with whatever is at hand, so to speak, in his single cell at ADX, where he's confined 23 hours a day. Even if it's a steady dose of What Not to Wear and Monk. -- Alan Prendergast
