Payton v. Cannon, No. 14-1694 (7th Cir. Dec. 1, 2015).
Payton, an Illinois prisoner, ordered some pornographic magazines. The warden intercepted the magazines and didn’t pass them along to Payton. Payton objects that the warden has violated his First Amendment rights—rights that include the ability to receive as well as to disseminate printed material. The warden responds that he’s instituted his interdiction policy because it cuts down on black-market trading, violence, and public masturbation.
The Seventh Circuit upholds the policy because Payton has failed to counter it with any real evidence. But because this is the Seventh Circuit—and Judge Posner in particular—the court doesn’t stop there. Is swapping the magazines really that bad? Will there really be more violence? “As with so many behavioral issues touched by American law,” Judge Posner says, “one would like to see” the prison policy “analyzed scientifically.” As for public masturbation? Inmates “can be expected to engage in” it “even if they have no access” to pornography, and swift after-the-fact punishment would likely deter it. For now, though, and absent further empirical study, the porn prohibition must stand.