Court rules prisoner has a First Amendment right to 'erotic' werewolf novel

California's First District Court of appeals ruled recently that its prisons don't have the right to restrict inmates' access to literary depictions of sex and violence, even if the book itself is far from a timeless literary masterpiece.

When Andres Martinez -- a "voracious reader," his lawyer Richard Braucher told the San Francisco Chronicle -- ordered the second novel in Mathilde Madden's werewolf triology, he hardly expected to end up in court over his taste in literature. But as Martinez is serving time in Pelican Bay Prison for attempted murder and other crimes, prison officials have the right to confiscate obscene and violent material, and they confiscated his copy of The Silver Crown for its graphic depictions of sex and murder.

After losing an administrative appeal, a second appeal and for a Director's Level Review, Martinez filed a writ of habeas corpus for the return of his book, which was also denied by the courts based on the sexual content of the novel. But the Appeals Court took a strong position against the lower court's ruling, noting that prison officials did not take into account the third prong of the legal obscenity test -- whether the novel "taken as a whole, lacks serious literary, artistic, political, or scientific value."

In the ruling, Justice James Richman said that it isn't for the government to determine the objective quality of the work to determine whether it qualifies as obscenity, but to judge its intention.

Indeed, we question whether we should judge the superior or inferior literary merit of the book at all. We suspect it is the nature of the work rather than its quality that lends it "serious literary value." In other words, we attempt to determine whether the book is serious literature, not whether it is good literature.

In answering the question about the novel's seriousness, Richman noted the long history of paranormal literature in American culture.

To begin with, we cannot simply dismiss the work as nonserious literature because it deals with werewolves and other paranormal creatures and activities. For better or worse, some segment of the population is fascinated by werewolves and other mythical beings, as most recently shown by the Twilight (Summit Entertainment 2008) movies. ... Whether contemporary readers drawn to this genre actually believe in werewolves, whether they see in such works a metaphor for some kind of human transformation, or whether they simply read werewolf literature as escapist fantasy, the fact remains that werewolf literature retains a place in modern American and European society.

To the question of whether the novel at issue can be considered "serious" in its intentions, Martinez and his lawyers submitted the opinion of San Francisco State University creative writing instructor Peter Orner, who argued that the book had "literary merit. "It's not Tolstoy, fine," Orner wrote, "but this author knows how to move story, carry out a plot, with a theme, and how to give her characters a certain depth characteristic of literary fiction." He added, "The characters have sex but the book is about more than sex. As I said above, it seems to me that the book is an exploration of the confines of a certain society, one that is in some ways similar to our own but that also contains magical elements. It's about freeing oneself from one's greatest fears, and in this way this is clearly a work of literature."

The justices, who clearly read the book in question, added, "This is not a book in which a minimal amount of literary material has been added as a sham to attempt to constitutionalize otherwise unprotected obscenity. While we have not calculated a page-by-page comparison, it is clear that the number of pages devoted to sexually explicit material is a minority of the overall text."

The justices additionally provided a textual comparison between the violent scenes in the werewolf novel and other books deemed appropriate for prisoner reading, like Chainfire by Terry Goodkind and Inner City Hoodlum by Donald Goines to make the point that the human-on-werewolf violence portrayed in Silver Crown is tame by comparison.

The book purchased by Martinez, which was in the justices' possession, was given to California's Attorney General with orders that it be returned to Martinez.

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