Opinion
No. 95-1451
December 11, 1995
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This action challenges the Department of Correction's policy against male prisoners wearing earrings. Plaintiff, Ray Champagne ("Champagne"), claims that the prohibition violates his rights of freedom of speech and expression under Article 16 of the Massachusetts Declaration of Rights. Alternatively, because female prisoners are not similarly barred by the Department of Corrections ("Department") from wearing earrings, Champagne alleges that the Department's policy violates his right to equal protection of the laws under Article 1 of the Declaration of Rights. The defendants moved for summary judgment on the dual grounds that the plaintiff's speech rights have not been violated, and the equal protection argument is moot because the Commissioner intends to issue revised regulations forbidding the wearing of earrings by female prisoners. For the reasons set forth herein, defendants' motion for summary judgment is allowed with respect to the Article 16 claim, and it is denied with respect to the Article 1 claim.
BACKGROUND
Champagne has been a state prisoner since 1974. He has worn a pierced earring since 1969, including during the years he spent in the Departmental Segregation Unit. Champagne began wearing an earring "as a form of protest against what was then (the 1970's), conventionally accepted male behavior and support of the ideals espoused by the counter-culture movement." The wearing of an earring has meaning to Champagne "in a social, political, and historical sense." On February 20, 1995, a prison guard ordered Champagne to remove his stud-type earring.
The Department has promulgated regulations specifying what kinds of personal items may be retained by inmates in general population depending upon the particular security level of the institution in which the inmate is housed. 103 CMR 403.11. Those regulations provide that "female inmates are permitted to retain a maximum of five pairs of stud type earrings. No earring shall be allowed in male designated facilities." 103 CMR 403.11, § 3(e). The Department has drafted new inmate property regulations that, if promulgated, will, among other things, prohibit the wearing of earrings at all the Department's institutions, female as well as male. The Commissioner believes that earrings worn by inmates "can be used as gang identification or as weapons and they can make inmates more prone to injury."
DISCUSSION
Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). See Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. Pro. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, "and [further] that the moving party is entitled to judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989).
Article 16
Assuming that Article 16 of the Declaration of Rights protects Champagne's right to express himself by wearing an earring, that right may be trumped by legitimate penological concerns. An inmate retains only those First Amendment rights "that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Even when a prison regulation infringes upon the exercise of activity protected by the First Amendment, it "must be evaluated in light of the central objective of prison administration, safeguarding institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979), cited with approval in Champagne v. Commissioner of Correction, 395 Mass. 382, 387 (1985) (affirming allowance of summary judgment in favor of defendants on plaintiff's claim, asserted under both the First Amendment and the Massachusetts Declaration of Rights, for unconstitutional interference with incoming publications).
In order to claim the protection of the First Amendment, a plaintiff must demonstrate that his conduct is intended "to convey a particularized message . . . and . . . the likelihood [is] great that the message would be understood by those who viewed it." Texas v. Johnson, 491 U.S. 397, 404 (1989), citing Spence v. Washington, 418 U.S. 405, 410-411 (1974). Wearing an earring to express "individuality" has been held not to constitute the type of particularized message that comes within the protected scope of the First Amendment. Olesen v. Board of Education, 676 F. Supp. 820, 822 (N.D. Ill. 1987). See also Capaldo v. Pan American Federal Credit Union, 43 EPD ¶ 46,913, 46,916 (E.D. N.Y. 1987) ("we seriously question and doubt that defendant's action [terminating a male's employment for refusing to remove an earring] would be constrained by the First Amendment"). Moreover, Champagne has come forth with no evidence tending to show a triable issue of fact on the objective prong of the Texas v. Johnson test. See Bivens v. Albuquerque Public Schools, 899 F. Supp. 556, 560-561 (D.N.M., 1995) (plaintiff failed to meet his burden to demonstrate a genuine issue for trial as to whether his wearing of sagging pants to "identify and express his link with his black identity, the black culture and the styles of black urban youth" is constitutionally protected speech under the First Amendment). Article 16, which provides that "[t]he right of free speech shall not be abridged," has been held to protect some types of conduct not clearly protected by the First Amendment. E.g., Commonwealth v. Sees, 374 Mass. 532, 537 (1978) (Article 16 protects semi-nude dancing).
A regulation restricting an inmate's constitutional right to wear an earring is valid if it is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Although Turner dealt with the standard to be applied to a prison regulation impinging upon an inmate's federal constitutional rights, as the Supreme Judicial Court noted in Champagne, 395 Mass. at 386, "given the facts presented here, the plaintiff's Federal and State constitutional claims are subject to the same standard of review." See Commonwealth v. Franklin Fruit Co., 388 Mass. 228, 235 (1983); Zayre Corp. v. Attorney General, 372 Mass. 423, 433 n. 22 (1977). "Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand." Turner, 482 U.S. at 89.
But see Manor v. Rakiey, 2 Mass. L. Rptr. 506, 508 (October 24, 1994) (rejecting application of Turner standard of review to a prison regulation infringing upon activity protected by Article 16).
The policy at issue is rational, not arbitrary, and not disproportionate to correctional needs. It is content-neutral, precluding the wearing of all earrings, not merely those bearing a particular symbolic design. The Commissioner's affidavit states that the Department believes that earrings can be used as gang identification or as weapons and that they can make inmates more prone to injury. A needle-thin earring post undoubtedly can be used as a weapon. An earring can be quickly removed and used to scratch or prick an unsuspecting victim; there is the potential for serious injury should the post be shoved into another's eye, for example. The fact that there is no evidence in this record that earrings have actually been used by inmates to assault others does not mean that the Department must await actual abuse before taking action to eliminate a potential safety risk. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132-133 (1977). Surely, prison administrators are better equipped than the judiciary to assess the complex security realities of operating a penal institution. Institutional security is a legitimate, indeed vital, governmental interest. Cf. Star v. Gramley, 815 F. Supp. 276 (C.D. Ill. 1993) (male prisoners may be barred from wearing makeup and female garb in order to minimize security risks).
Massachusetts is not unique in forbidding inmates from wearing earrings. Other prison systems have imposed substantially similar restrictions. E.g., Sasnett v. Department of Corrections, 891 F. Supp. 1305, 1309, 1312 (W.D. Wis. 1995) (inmates lack interest in possessing their property arising from the First Amendment).
Simply because inmates have access, as Champagne points out, to other items, such as pens, pencils, and paper clips, that might be used as weapons does not mean that the Department may not prohibit this particular, less essential item. Moreover, the constitution does not require that "all evils of the same genus be eradicated or none at all." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949).
In sum, "[t]he prohibition on [inmates wearing earrings] is reasonably related to valid corrections goals. The rule is content neutral, it logically advances the goals of institutional security and safety identified by . . . prison officials, and it is not an exaggerated response to those objectives." Turner, 482 U.S. at 93. Accordingly, the regulation does not unconstitutionally abridge the Article 16 rights of prison inmates.
The regulation also passes muster under the standard of scrutiny articulated in Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 216 (1989), citing United States v. O'Brien, 391 U.S. 367, 377 (1968). The ban on earrings furthers an important or substantial governmental interest unrelated to the suppression of expression, namely institutional security, and the limitation on the freedom of expression is no greater than is essential to the protection of the particular governmental interest involved.
Article 1
The only argument made by the Commonwealth in support of its motion for summary judgment on the equal protection claim is that this claim is moot. Indeed, at oral argument, the Commonwealth conceded that the differential treatment between men and women has no rational basis whatsoever and that plaintiff's Article 1 claim has merit.
Because the regulations eliminating the distinction made between men and women in the wearing of earrings remain in the draft stage, the plaintiff's action is not, at this time, moot. Accordingly, the defendants' motion for summary judgment with respect to the equal protection claim is denied. At the hearing on its motion, the Department represented that it will issue revised regulations on an emergency basis if necessary to cure the admitted constitutional defect. Accordingly, the Commonwealth is directed to file a status report within forty-five days.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendants' motion for summary judgment on the Article 16 claim is ALLOWED and that the defendants' motion for summary judgment on the Article 1 claim is DENIED; it is further ORDERED that the defendants file a status report within forty-five (45) days.
E. Susan Garsh Justice of the Superior Court
Dated: December 11, 1995