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Inmates in federal prisons who challenged a ban on allowing them to watch movies rated R or NC-17 have won a new shot at making their case now that a federal appeals court has ruled that a Western District of Pennsylvania judge was too quick to rule in favor of the government. In Wolf v. Ashcroft, the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge Sean J. McLaughlin of the Western District of Pennsylvania “did not conduct a proper, thorough analysis” of whether the ban is “reasonably related to legitimate penological interests.” Writing for the court, 3rd Circuit Judge Marjorie O. Rendell found that McLaughlin improperly relied on “common sense” and that his four-page order deciding the case in favor of the government failed to show his reasoning. “Is it a matter of common sense … that prohibiting movies rated R or NC-17 deters the general public from committing crimes, lest they be sent to prison where they are not permitted to watch R-rated movies? We are not so sure,” Rendell wrote in an opinion joined by 3rd Circuit Judge Julio M. Fuentes. (Third Circuit Judge Carol Los Mansmann also heard the case but died before it was decided. Under the court’s internal rules, if the two remaining judges on the panel agree, they can decide the case on their own; a third judge is added and the panel is “reconstituted” only when the two judges disagree.) In the remand, Rendell said McLaughlin must address all four prongs of the Turner test — named after the U.S. Supreme Court’s 1987 decision in Turner v. Safely — before deciding whether the ban is constitutional. The suit was filed by attorney Jere Krakoff of the Pennsylvania Institutional Law Project in Pittsburgh on behalf of a class of federal prisoners. At issue in the case is a prison policy that provides that “no movies rated R, X, or NC-17 may be shown to inmates.” The ban on X-rated movies has long been in place, but the policy was amended to implement the Zimmer Amendment — part of the Omnibus Consolidated Appropriations Act of 1997 — in which Congress prohibited spending money for the viewing of movies rated R, X or NC-17 in prison. The inmates also challenged the Ensign Amendment, which bars the expenditure of federal funds to distribute or make available to prisoners any commercially published material that is sexually explicit or features nudity. Rendell found that the inmates’ First Amendment claims were directly controlled by the Turner test. Under the first prong of the test, she said, the court must ask whether there is a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it. If the court is satisfied that the interest is legitimate and neutral, Rendell said, it must then turn to the next three prongs, which focus on whether “alternative means of exercising the right … remain open to prison inmates …, the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally,” and, finally, whether there are “ready alternatives” to the rule that would accommodate prisoners’ rights at de minimus cost to penological interests. Rendell found that although McLaughlin “acknowledged” the Turner test, he never actually applied it. Instead, McLaughlin cited the 3rd Circuit’s 1999 decision in Waterman v. Farmer — which, he said, endorsed a “commonsense” approach to answering such questions — and then concluded that the movie ban was “neutral and reasonable, and rationally related to legitimate penological interests.” Rendell found that McLaughlin’s reasoning was lacking since he “never stated or described the interest purportedly served by the prison policy” and failed to truly decide the critical issue of whether the interest was neutral and legitimate. In court papers, Rendell said, lawyers for the government “offered several theories” in support of the ban, but McLaughlin’s order doesn’t show which ones he accepted. “We cannot tell, for instance, whether the court credited the government’s assertion that the movies posed security risks, or that the absence of such movies deterred people from committing crimes, or that denial of such movies fosters rehabilitation,” Rendell wrote. Krakoff argued that McLaughlin should be ordered to hold a hearing and take evidence so that his application of the Turner test would be based on a record. But Rendell said the inmates were asking for a “categorical ruling” that evidence must be presented to establish the necessary connection. In some cases, she said, “common sense” might prove to be enough. “Whether the requisite connection may be found solely on the basis of ‘common sense’ will depend on the nature of the right, the nature of the interest asserted, the nature of the prohibition, and the obviousness of its connection to the proffered interest,” Rendell wrote. The government was represented in the appeal by Justice Department attorney Edward Himmelfarb in Washington, D.C., and Assistant U.S. Attorney Laura S. Irwin in Pittsburgh.

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