Ortiz v. Arnone
A prisoner keeps only those First Amendment rights that are not inconsistent with the legitimate, penological objectives of the correction system. The plaintiff inmate, Akov Ortiz, requested a preliminary injunction and restraining order, to prevent the Department of Correction from enforcing its policy, which took effect June 30, 2012, and which prevent prisoners from receipt of materials that contain nudity or sexual activity, such as Playboy and Penthouse magazines. The plaintiff alleged that the policy violates his rights under the First Amendment to the U.S. Constitution and 42 United States Code §1983. The defendants argued that the policy promotes institutional safety and security and creates a less offensive work environment. A prisoner retains only those "First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correction system," pursuant to Giano v. Senkowski, a 1995 decision of the 2nd Circuit. A District Court that reviews prison policies must exercise judicial restraint. Prison regulations will be upheld, if reasonably related to legitimate penological interests, pursuant to Turner v. Safley, a 1987 decision of the U.S. Supreme Court. The court found that the policy is neutral, because it bans sexually explicit material regardless of gender or sexual orientation. Prison security is a legitimate government objective. The plaintiff inmate may continue to receive publications that do not depict nudity and sexually explicit materials of an artistic, educational, literary or scientific nature. The plaintiff failed to establish a likelihood of success on his claims, and the court denied the plaintiff's request for a preliminary injunction or temporary restraining order.