by Steve Horn

On September 14, 2018, Prison Legal News submitted a petition for writ of certiorari to the U.S. Supreme Court in a case involving censorship by the Florida Department of Corrections (FDOC), which has banned PLN statewide since 2009.

In October, eight friend of the court (amicus) briefs, on behalf of over 100 organizations and individuals, were filed on PLN’s behalf in support of its petition.

The cert petition followed an adverse May 17, 2018 ruling by the Court of Appeals for the Eleventh Circuit, authored by Judge Ed Carnes, which upheld the district court’s judgment in favor of the FDOC on a First Amendment censorship claim, and in favor of PLN on a due process claim. The suit was filed against Florida prison officials in 2011 following an earlier, unsuccessful round of litigation over a similar issue. [See: PLN, Dec. 2011, p.32; Nov. 2005, p.29; Feb. 2004, p.27].

The appellate court found the FDOC’s censorship of PLN’s monthly publication was justified based on security concerns related to certain advertisements, including ads for pen pal services, businesses that purchase postage stamps and third-party phone services. The ruling was despite the fact that no other state DOC censors PLN on the basis of its advertisements, and Florida prison officials could not point to any security incidents that had been caused by PLN or its ads. In a particularly vitriolic decision, the Eleventh Circuit held the ads might pose security threats, contrary to the testimony of PLN’s experts at trial. See: Prison Legal News v. Secretary, Florida Department of Corrections, 890 F.3d 954 (11th Cir. 2018).

PLN countered in its petition to the Supreme Court that the FDOC’s blanket censorship violated its First Amendment rights, and that it should prevail under the test set forth in Turner v. Safley, 482 U.S. 78 (1987), because the FDOC’s ban was an “exaggerated response” to its supposed – and unproven – security concerns.

“Publishers, reporters, and advertisers have a constitutionally protected interest in communicating with prisoners, and prisoners have a right to receive those communications,” the 45-page cert petition states. “These protections are all the more important when the publication at issue is uniquely designed to inform prisoners of their legal rights, and a prison’s decision to silence that speech is all the more suspect when it is applied in a blanket manner to the entire incarcerated population based on bare assertions of security concerns without supporting evidence.”

The cert petition makes the argument that the ban on PLN is felt most acutely within the prison system, since the publication provides information of specific relevance to prisoners and does so in a way that can only be accomplished through the magazine itself. That is, there are no “easy alternatives” for PLN to provide its content to prisoners.

“First Amendment rights are at their zenith, and their abridgment the most harmful, when a prison censors publications that inform inmates of their legal and civil rights and chronicle violations thereof,” the petition states. “A publication like Prison Legal News is both uniquely useful to prisoners and, based on its content, a uniquely attractive target for censorship by prison officials. Indeed, during the last 9 years of censorship by the FDOC, Florida inmates were barred from reading the many articles in Prison Legal News regarding problems in their own prison system.”

The petition further asserts that the Court of Appeals gave “blind deference” to the FDOC’s “unsupported, self-serving” assertions, rather than weighing the evidence presented in the case.

The first of the eight amicus briefs on PLN’s behalf was filed by a number of faith organizations, by attorneys Johnathan Smith, Sirine Shebaya and Nimra Azmi with the organization Muslim Advocates, and Brian Pandya, Andrew Woodson, Krystal Swendsboe, Tatiana Sainati, A. Louisa Brooks and Michael Diakiwski with the law firm of Wiley Rein LLP

The amici supporters included the Central Pacific Conference United Church of Christ, Freedom Through Christ Prison Ministry, Muslim Advocates, Muslim Urban Professionals, the National Council of Jewish Women, the National Religious Campaign Against Torture, the Sikh Coalition and T’ruah. The groups argued that if the FDOC’s ban on PLN was upheld, it could set a precedent for censoring various forms of religious literature, too.

That is, although freedom of speech issues were at issue in this case, freedom of religion is also a central component of the First Amendment.

“Incarcerated persons’ religious practices, and access to religious texts, are frequently limited by prison regulations,” the brief noted. “Religious minorities often bear the brunt of those regulations due to prison officials’ lack of knowledge, understanding, or even bias towards certain faiths and practices. The Eleventh Circuit’s opinion creates a grave risk that such regulations will be given improper deference in the future and will interfere with the ability of Amici to distribute religious materials to prisoners and impinge on the free exercise rights of incarcerated persons.”

Another amicus brief, filed by conservative organizations, featured a broad constellation of groups that ordinarily would be considered untraditional allies for this particular cause. The attorneys who authored the brief included Nila Bala with R Street Institute; Victor Bernson and Casey Mattox with Americans for Prosperity; Trevor Burrus with the Cato Institute; John Estes III, Donald Salzman, Thomas Parnham, Jr. and Todd Kelly with the law firm of Skadden, Arps, Slate, Meagher & Flom LLP; attorney Manuel S. Klausner; and John W. Whitehead and Douglas R. McKusick with the Rutherford Institute.

Americans for Prosperity is a political advocacy organization founded and funded by Koch Industries, a company owned by David and Charles Koch – better known as the Koch brothers. They are among the largest donors to Republican candidates for political office. The conservative groups argued in their brief that PLN is an important legal educational tool for prisoners, which can help them both while incarcerated and after release.

“By helping its subscribers “confront[] injustice and focus[] on problemsolving,” Prison Legal News ‘assist[s] in forging a sense of community around the law, learning, and social action,’” they wrote. “As a periodical designed specifically to provide legal information to prisoners, Prison Legal News is essential to fostering a sense of procedural justice and engendering positive views of the legal system and society.” The Eleventh Circuit, they added, “by focusing so intently on Florida’s assertion of a need for ‘prison security,’ lost sight of this legitimate penological objective.”

Joining Americans for Prosperity was the Koch-funded Cato Institute and Reason Foundation, R Street Institute and the Rutherford Institute.

A third amicus brief was filed by organizations that support freedom of the press – although members of the mainstream media were conspicuously absent. Regardless, PLN found fellow travelers in the brief filed on behalf of groups that advocate for free press rights, filed by attorneys Thomas Julin and Timothy McGinn with Gunster, Yoakley & Stewart P.A.

The 18 amici partners in the media brief included the Association of Alternative Newsmedia, the American Society of News Editors, Criminal Justice Journalists, the First Amendment Foundation, the Florida Press Association, The Marshall Project, the National Coalition Against Censorship, the Press Freedom Defense Fund, The Marshall Project and Reporters Committee for Freedom of the Press.

Those groups argued that even though only the censorship of PLN was at issue in this case, the precedential value extended to other publications that are distributed to prisoners nationwide.

“The vagueness of the challenged rule permits prison officials to impound any of these publications for putative noncompliance with the rule even if the actual basis for impoundment is officials’ disagreement with editorial content,” they wrote. “In addition, regulations that target advertising based on content are as offensive to First Amendment principles as regulations that target editorial material based on content.”

Yet another ally in PLN’s cert petition came in the form of an amicus brief filed by prison book programs, authored by attorney Gregory M. Lipper with the law firm of Clinton Brook & Peed.

The book programs that joined the brief included the Asian American Writers’ Workshop, Book ‘em, Books Beyond Bars, Books Through Bars, Chicago Books to Women in Prison, the Free Minds Book Club, NYC Books Through Bars, the Prison Literature Project and the Prison Book Program. All have a focus on distributing books and literature to prisoners.

For prison book programs, censorship is nothing new and the FDOC’s blanket ban on PLN is just the latest frontier in the fight against such policies, they wrote. They took a broad stand on freedom of speech rights, saying that if the Supreme Court fails to take this case, it would be a giant step backwards in First Amendment jurisprudence.

“With enough time and ingenuity, prison officials and their lawyers can usually imagine some way in which some aspect of a particular written work might conceivably have some marginal effect on prison order or security,” their brief stated. “Hyperbolic as these concerns may seem, amici have experienced firsthand just how aggressively prison officials will censor reading materials, including books. In fact, prisons across the country have censored an astonishing number and variety of books – fiction and nonfiction, classic and contemporary, educational books and books for entertainment, books that profile the prison system or criticize the justice system, and many, many more.”

A fifth amicus brief, on behalf of civil rights advocacy organizations, was penned by attorney Joseph E. Bringman with Perkins Coie LLP. The sign-on groups included CURE, the Civil Rights Clinic at Michigan State University College of Law, the National Police Accountability Project, Equal Justice Under Law, the Prison Law Office, the Prison Policy Initiative, The Sentencing Project, the Southern Center for Human Rights and the Southern Poverty Law Center, among others.

They wrote that the Eleventh Circuit “did not account for the negative impact that the ban on Prison Legal News has on the right and ability of incarcerated persons to access the courts in order to obtain redress for violations by corrections officials of their constitutional and other rights pertaining to conditions of their confinement,” and the appellate court “did not consider the positive impact that reading Prison Legal News has on the penological goal of rehabilitation and, concomitantly, the negative impact on rehabilitation of cutting off access by incarcerated persons to Prison Legal News.”

Further, they stated, “Prison officials should not be able to defend their decisions to deprive incarcerated persons of their First Amendment rights with the kind of speculation that would not be sufficient to support a claim in a civil complaint.”

No cert petition would be complete without law professors chiming in, which occurred when the sixth amicus brief was filed by attorneys Charles Davis and Kevin Russell with Goldstein & Russell, P.C.

The brief was on behalf of 42 professors from schools that included the University of Chicago Law School, University of California-Davis Law School, Georgetown University Law Center, University of Pennsylvania Law School, Northwestern University School of Law, Yale Law School, University of California-Berkeley School of Law and many others.

The professors pointed to the Supreme Court’s ruling in Turner, which granted a certain level of deference to prison officials in the name of maintaining security, saying it was high time the Court re-evaluate the Turner standard with respect to censorship in prisons and jails.

“In particular, Amici Law Professors believe the courts of appeals have consistently misinterpreted Turner to give unrestrained deference to prison officials when faced with prisoner attempts to exercise their First Amendment rights,” they wrote. “This Court’s guidance is necessary to protect against further erosion of these constitutional rights. Amici Law Professors also believe that, in the alternative, this Court should reassess the reasonableness standard adopted in Turner and instead apply heightened scrutiny to censorship decisions by prison officials.”

Because a significant portion of PLN’s budget comes from advertising revenue, businesses and organizations that market their products and services in the publication joined in support of the cert petition. The advertisers’ amicus brief, led by the American Friends Service Committee, was written by attorneys Bruce Johnson and Caesar Kalinowski with Davis Wright Tremaine LLP.

Citing precedent, their brief argued that federal courts have consistently recognized that advertisers have First Amendment rights, too.

“In fact, an advertiser’s free speech rights are often bound with its publisher’s because imposing content-related restrictions on advertisements ‘establishes a financial disincentive to create or publish works with [that] particular content.’”

Further, the FDOC’s blanket ban on PLN “results in the total prohibition of one publication’s legal articles, legal services advertising, and ‘objectionable’ advertisements that promote entirely benign and lawful services,” the advertisers wrote. “Because the deprivation of rights here is so severe and FDOC’s reasons are so attenuated and arbitrary, FDOC cannot meet its legal burden to validate its unconstitutional suppression of speech.”

Last but not least, the eighth and final amicus brief was filed by former prison officials, authored by attorneys Elliott Schulder, Alexander Chinoy Lauren Moxley, Nicole Roberts and Melanie Ramey, all employed by Covington & Burling LLP. In their brief, the prison officials, including a former assistant director of the Bureau of Prisons and former directors of state prison systems in Pennsylvania, Oklahoma and Washington, described PLN as a publication that is particularly useful to prisoners due to its singular focus on criminal justice issues.

“Prison Legal News uniquely benefits prisoners and the prison environment,” they said. “The magazine promotes respect for both the law and the rule of law, which are critical concepts in rehabilitating the men and women who find themselves in prison or jail. Because there are no ‘alternative means’ for a prisoner to exercise the right restricted by the [FDOC] regulation, the restriction therefore fails the second Turner factor.”

They also noted that the FDOC is the “only corrections system in the country that institutes a total ban on Prison Legal News. FDOC stands alone in using a bludgeon to restrict the First Amendment in response to perceived concerns about the magazine’s advertising content.”

Traditionally, while 7,000 to 8,000 cert petitions are filed with the Supreme Court each year, the Court only hears around 100-150 cases; thus, the chances of any particular petition being granted is very low. Generally speaking, the Supreme Court prefers cases that involve split decisions in the circuit courts or that will have major precedential value.

PLN should know by the end of January 2019 whether its cert petition has been granted and will be heard on the merits. Even if the high court declines to hear the case and the Eleventh Circuit’s ruling is upheld, PLN will still prevail on its Fourteenth Amendment due process claim against Florida prison officials.

PLN is represented before the Supreme Court by former U.S. Solicitor General Paul D. Clement with Kirkland & Ellis LLP, and by former White House associate counsel Michael H. McGinley, Roger A. Dixon and Lindsay E. Ray with Dechert LLP. Other attorneys on the cert petition include Human Rights Defense Center general counsel Sabarish Neelakanta and staff attorneys Deborah Golden, Masimba Mutamba and Daniel Marshall, and attorneys Randall C. Berg, Jr. and Dante P. Trevisani with the Florida Justice Institute.

See: Prison Legal News v. Secretary, Florida Department of Corrections, U.S. Supreme Court, Case No. 18-355. 

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