A federal appeals court says Arizona prisons might be violating the First Amendment by unfairly targeting hip-hop music as contraband, reviving a lawsuit filed by an inmate who said his Kendrick Lamar and The Weeknd albums were seized while books on the Aryan Brotherhood were allowed in.
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Edward Lee Jones sued the Arizona Department of Corrections in 2018 after guards seized six CDs he’d ordered by mail, including albums by Kendrick, The Weeknd and Snoop Dogg. He argued that a state policy banning explicit materials had been applied more rigorously against hip-hop and R&B music than other forms of media.
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Though a lower federal court rejected the case last year, the U.S. Court of Appeals for the Ninth Circuit revived Jones’ lawsuit last week, citing evidence that the prison’s rule had been “inconsistently applied” to certain genres of music.
“There is a material question of fact here — whether ADC selectively enforces [the policy] against disfavored expression, rap and R&B musical genres,” the court wrote. “The district court should not have granted summary judgment.”
The First Amendment allows for restrictions on free speech if they serve a legitimate purpose, and the Ninth Circuit ruled that Arizona’s rule, known as Department Order 914, was justified because it was designed to protect “safety, security and orderly operations” by banning materials depicting drugs, sex and violence.
But such restrictions must be applied neutrally to all speech, meaning they cannot target certain types of expression for tougher scrutiny. In that respect, the Ninth Circuit ruled that Arizona’s rule potentially ran afoul of the law.
Though Department Order 914 had been applied to confiscate hip-hop albums, Arizona prisons had simultaneously allowed access to other media that would seem to clearly break those same rules, the court wrote, including books about Nazis and the Aryan Brotherhood and thriller novels that involves serial killers targeting young women.
“We would expect some inconsistencies in any policy [and] even the clearest of policies would not be immune from human error,” the court wrote last week. “But the inconsistencies identified by Jones go beyond the occasional explicit song being allowed or book being excluded.”
The ruling was not a final win for Jones. Instead, the court sent the case back to the lower court for more proceedings, including a potential trial over whether the state’s rules violated the constitution. A spokesperson for the Department of Corrections did not return a request for comment on Wednesday.
Jones is not the first inmate to challenge Department Order 914. In an earlier case filed by a news outlet aimed at inmates, a federal judge ruled that the provision itself “violates the First Amendment on its face,” regardless of how it’s applied. That ruling is currently pending on appeal before the Ninth Circuit.