Wilson v. Dept. of Corrections

OAR 291-131-0035 is not overbroad, does not exceed Department authority, and is therefore valid.

Department of Corrections (“Department”) inmate Gregory Wilson and his wife Stormii Wilson, who is not an inmate, present a facial challenge to the validity of Department rule OAR 291-131-0035(1)(a) which prohibits inmates from receiving sexually explicit material that poses a threat to the security, good order, or discipline of the facility. The Wilsons argue that the rule (1) violates Article I, section 8, of the Oregon Constitution, and (2) exceeds Department authority by regulating conduct of non-incarcerated persons. The Court of Appeals first held that the rule falls into the category of speech regulations that “prohibit the accomplishment of, or attempt to accomplish, harm and specify that one way that the harm might be caused is by speech.” This type of regulation is presumptively constitutional unless it is overbroad. The Court held that the rule at issue is not overbroad because it only regulates sexually explicit material that poses a threat to security or order, which the Department determines on a case-by-case basis. The Court rejected second challenge without discussion. The OAR 291-131-0035 held valid.