The opinion of the court was delivered by: SPORKIN
These consolidated cases involve First Amendment challenges to Section 614 of the Omnibus Appropriations Act of 1997, Pub. L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996), which prohibits the Federal Bureau of Prisons ("BOP") from using federal funds to "distribute or make available" to prisoners "commercially published information or material" known to be "sexually explicit or featuring nudity." This provision, which was introduced by Representative John Ensign, has come to be known as the "Ensign Amendment."
This matter is now before the Court on the Plaintiffs' motion for a preliminary/permanent injunction
to prevent enforcement of the Ensign Amendment, and Defendant's opposition thereto. The Court heard oral argument in this matter on June 25, 1997. For the reasons stated below, the Court finds that the Ensign Amendment, on its face, violates the First Amendment. Accordingly, the Court grants Plaintiffs' motion for permanent injunctive relief.
Federal prison authorities have long monitored and controlled the distribution of publications inside prison walls. Distribution of publications in federal prisons is controlled pursuant to regulations originally issued by the BOP in 1979 ("1979 regulations"). 28 C.F.R. § 540.71. The 1979 regulations give wardens the authority to keep prisoners from receiving publications only if the wardens determine that the material is "detrimental to the security, good order, or discipline of the institution or if [the publication] might facilitate criminal activity." 28 CFR § 540.71(b). The regulations also specifically forbid the rejection of "a publication solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant." Id.
The policy does not permit wardens to create a list of prohibited publications. Rather, each individual issue has to be reviewed by a warden prior to rejection. 28 CFR § 540.71(c). While sexually explicit material can be rejected at a wardens discretion, the Program Statement expressly notes that sexually explicit heterosexual material will "ordinarily be admitted."
The Supreme Court upheld the constitutionality of the 1979 regulations in Thornburgh v. Abbott. 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989).
On September 30, 1996, President Clinton signed into law the Omnibus Budget Act of Fiscal Year 1997, P.L. 104-208, 110 Stat. 3009. Section 614 of the Act, known as the Ensign Amendment, states in its entirety:
None of the funds made available in this Act to the Federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the Federal official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity.
Pub. L. No. 104-208, § 614, 110 Stat. 3009 (Sept. 30, 1996).
The Ensign Amendment was enacted as an attachment to a comprehensive budgetary bill. No hearings were held by Congress in enacting the Ensign Amendments and no committee report was issued. No discussion of the statute appears in any Conference Report. The only statements made on the floor of the House regarding the Amendment reflect a desire on the part of the sponsors to keep sexually explicit material away from prisoners.
There is no record that any committee or the full Congress ever discussed how the banning of sexually explicit materials, in particular, will advance rehabilitative goals, or whether it is necessary to prevent distribution of such materials to all prisoners. Neither did Congress make any finding that rehabilitative goals were not being met by the 1979 regulations.
On November 6, 1996, the Federal Bureau of Prisons ("BOP") issued an interim rule that enacted 28 C.F.R. § 540.72, a regulation implementing the Amendment. Despite the new regulation, the 1979 regulations still remain in place except where they are inconsistent with the Ensign Amendment. See 28 C.F.R. § 540.70.
The new regulation specifically enforces the Ensign Amendment, requiring wardens to reject for distribution to any prisoner any sexually explicit publication or publication that "features" nudity. 28 C.F.R. § 540.72. Section (b) of the regulation defines the operative terms:
(1) "Commercially published information or material" means any book, booklet, pamphlet, magazine, periodical, newsletter, or similar document, including stationery, and greeting cards, published by any individual, organization, company, or corporation which is distributed or made available through any means or media for a commercial purpose. ...