07.06.11

The Right to Porn

A clumsy bank robber in Michigan just sued the state, claiming his civil rights are being violated after not being given access to porn. Mansfield Frazier on why he’ll win.

Kyle Richards, a 21-year-old prisoner being held at the Macomb County Jail in Michigan, might be a pretty dumb bank robber (police followed a set of footprints he allegedly left in the snow, along with a trail of money, all the way back to his apartment this past January), but he’s also a staunch defender of the First Amendment. Richards recently filed a lawsuit against the State of Michigan and Governor Rick Snyder, claiming his civil rights are being violated because the jailer won’t allow him to possess “adult” magazines… plain ol' porn.

And, in spite of the opinions of “lock ‘em up and throw away the key” advocates, Richards undoubtedly will win his case if he stays the course. If he’s convicted of the robbery charges (which, considering how stupid he appears in the charges, is highly likely) he’ll have lots of time on his hands to pursue his case.

Over the last four decades, prisoner-inspired lawsuits (often with the aid of outside attorneys) have risen right along with the increase in prison populations. And many well-trained and experienced lawyers are quick to acknowledge that some “jailhouse lawyers” (PDF)—with tons of time on their hands to do exhaustive research—are excellent in many narrowly defined areas of criminal and civil law. Indeed, many of today's serious lawsuits over prison conditions before courts all over the country were initiated by jailhouse lawyers.

When (and if) Richards is shipped off to prison, he’ll have access to a law library and will be able to join the multitude of other prisoners who simply love to wile away the hours behind bars filing what some characterize as “frivolous” lawsuits. Many state legislators over the years have attempted to limit the number of lawsuits filed by prisoners, but extreme overcrowding and other inhumane conditions have made courts reluctant to go along with such measures, since the definition of “frivolous” is such a moving target, and, like porn, is truly in the eye of the beholder.

Not long after the U.S. Supreme Court, in 1973, issued its landmark decision that redefined pornography and opened the floodgates for the creation of the adult film industry and a plethora of magazines appealing to what some call “prurient interests” (another term defined by the eye of the beholder), prisoners across the country began filing lawsuits that forced warders to allow such magazines into penal institutions. Again and again, courts have wisely decided that incarceration does not forfeit or trump First Amendment rights; that’s one of those slippery slopes no lover of the Constitution and the rule of law wish to start descending over something so subjective.

Indeed, most prison administrators—even if they have conservative opinions on the subject of adult publications (in spite of perhaps having a couple of well-thumbed copies stashed away somewhere in the garage where the wife won’t find them)—simply ignore the porn on their premises. The wiser members of the corrections staff realize the presence of adult publications in prisons tend to make their jobs easier rather than more precarious. It’s simply common sense.

There’s an old prison joke about the newly arrived prisoner who asks why he’s being given three socks instead of two.

There’s an old prison joke about the newly arrived prisoner who, upon going through the line where clothing is issued, asks why he’s being given three socks instead of two. The old convict passing out the clothes simply says, “don’t worry, you’ll figure it out.”

The sheriff of Macomb County, Anthony M. Wickersham, is not a stupid man. He’s a seasoned veteran who has worked in corrections virtually all of his life and graduated from Northwestern University's Center of Public Safety School of Police Staff and Command. His official website says that he’s “committed to maintaining the vital services that are needed to keep our community safe; while administrating plans to cut costs and save tax dollars.” Which begs the question … if he’s so committed to saving tax dollars, why is he imposing a policy that he knows is indefensible in court, and will, in the long run, cost hard-earned tax dollars to defend? Talk about frivolity.