Commonwealth Court: State inmate has no constitutional right to possess pornography

By Amanda Thomas | May 7, 2018

HARRISBURG — A Pennsylvania appeals court has ruled that a state inmate has no constitutional right to have mail-order pornography delivered to his prison cell, according to a decision filed on April 10 in the Commonwealth Court of Pennsylvania.

The court was comprised by judges P. Kevin Brobson, James Gardner Collins and Robert Simpson, who issued the decision.

The case stems from a lawsuit filed by Brandon Key, an inmate, in 2015 against the Pennsylvania Department of Corrections (DOC), claiming that the prison’s refusal to let him receive pornography violated his right to free speech.

However, the appellate judges rejected his argument, ruling that the DOC’s policy “passes constitutional muster” and is related to “the legitimate penological objectives of security and rehabilitation.”

Simpson noted in the decision that the DOC's policy allows inmates to have some publications containing nudity or explicit sexual material if the materials have artistic, educational or medical value. Materials are banned if they feature “sexually explicit content intended to raise levels of sexual arousal.”

Key also alleged the DOC’s policy of destroying or returning prohibited publications violated his right to send rejected materials to his home. The DOC, however, argued that he lacked standing to bring a freedom of press claim under the U.S. and Pennsylvania Constitutions, and the appellate judges agreed.

“Key is not a member of the press,” Simpson wrote in the decision. “Further, he does not allege that he was prevented from freely speaking, writing or printing on any subject.”

Simpson also noted that the DOC’s policy doesn’t prevent Key from ordering the materials and having them delivered directly to his home. It only prohibits having the materials delivered to a prison.

“We discern no infringement on Key’s right to distribute literature or teach,” Simpson wrote in the decision. “As such, Key failed to state a First Amendment claim in that regard.”

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