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Prison Legal News v. Florida DOC, Censorship, amicus brief law professors 2015

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Appeal No. 15-14220

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PRISON LEGAL NEWS
Plaintiff-Appellee/Cross-Appellant,
V.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
Defendant-Appellant/Cross-Appellee.
On Appeal from the
United States District Court for the Northern District of Florida
No. 4:12-cv-00239-MW-CAS
BRIEF OF LAW PROFESSORS AS AMICI CURIAE
IN SUPPORT OF APPELLEE PRISON LEGAL NEWS
JASON BURNETTE
Counsel of Record
JONES DAY
1420 Peachtree St NE
Atlanta, GA 30309
Telephone: (404) 581-8724
jtburnette@jonesday.com
ANDREW BENTZ
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Counsel for Amici Curiae

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No. 15-14220, Prison Legal News v. Secretary, Florida Department of Corrections
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT *
On behalf of amici curiae, the professors listed in the appendix to this brief,
the undersigned incorporates the Certificate of Interested Persons included in
Plaintiff-Appellee’s principal brief and makes the following additions:
Amici Curiae
HADAR AVIRAM
Professor, UC Hastings College of Law
ERWIN CHEMERINSKY
Dean of the Law School, Distinguished Professor of Law, and Raymond Pryke
Professor of First Amendment Law, UC Irvine School of Law
BRYAN FAIR
Thomas E. Skinner Professor of Law, University of Alabama School of Law
MALCOLM FEELEY
Claire Sanders Clements Dean’s Professor of Law, UC Berkeley School of Law
PATRICK GUDRIDGE
Professor of Law, University of Miami School of Law
JENNIFER KINSLEY
Associate Professor of Law, Northern Kentucky University Salmon P. Chase
College of Law
ANDREW KOPPELMAN
John Paul Stevens Professor of Law, Northwestern University Pritzker School of
Law
Pursuant to Fed. R. App. P. 29(c), amici state that this brief was not
authored in whole or in part by counsel for any party, and that no person or entity
other than amici or their counsel made a monetary contribution intended to fund
the preparation or submission of this brief.
*

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ALAN MILLS
Adjunct Professor, Northwestern University Pritzker School of Law
MICHAEL MUSHLIN
Professor of Law, Pace Law
KERAMET REITER
Assistant Professor, UC, Irvine School of Law
IRA ROBBINS
Barnard T. Welsh Scholar and Professor of Law and Justice, American University
Washington College of Law
LAURA ROVNER
Associate Professor of Law, University of Denver College of Law
JONATHAN SIMON
Adrian A. Kragen Professor of Law, UC Berkeley School of Law
RODNEY SMOLLA
Dean & Professor of Law, Widener University, Delaware School of Law
NADINE STROSSEN
John Marshall Harlan II Professor of Law, New York Law School
SONJA WEST
Associate Professor of Law, University of Georgia Law
Attorneys for amici curiae
JASON BURNETTE
ANDREW BENTZ
/s/ Jason Burnette
Jason Burnette

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No. 15-14220, Prison Legal News v. Secretary, Florida Department of Corrections

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT .............................................................................. C1
TABLE OF CONTENTS ...........................................................................................i
TABLE OF AUTHORITIES ................................................................................... ii
STATEMENT OF THE ISSUES..............................................................................1
IDENTITY AND INTEREST OF AMICI CURIAE .................................................1
SUMMARY OF ARGUMENT ................................................................................2
ARGUMENT AND CITATION OF AUTHORITY ................................................4
I.

THE MODERN TREND IN FREE-SPEECH LAW DEMANDS A
NUANCED ANALYSIS UNDER TURNER V. SAFLEY ................................4
A. Recent First Amendment Cases Are Increasingly Protective of
Speech .........................................................................................................5
B. Increased Protection Brings Decreased Deference .....................................9
C. Under a Proper Turner Analysis, the Impoundment of Prison Legal
News Violates the First Amendment ........................................................10

II.

BECAUSE THE RIGHT AT STAKE IS IMPORTANT, MORE
PROCESS IS DUE THAN THE DISTRICT COURT’S ORDER
REQUIRES .....................................................................................................15

CONCLUSION .......................................................................................................19
CERTIFICATE OF COMPLIANCE WITH 11TH CIR. R. 28-1(M) ....................20
APPENDIX—LIST OF SIGNATORIES ............................................................ A-1

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TABLE OF AUTHORITIES
Page*
Cases
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ............................5
Beard v. Banks, 548 U.S. 521 (2006) ....................................................... 7, 8, 11, 12
Bounds v. Smith, 430 U.S. 817 (1977) .....................................................................11
Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011) ...... 6, 9, 14
Cheff v. Schnackenberg, 384 U.S. 373 (1966) .........................................................16
*Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010)......passim
Duncan v. Louisiana, 391 U.S. 145 (1968) .............................................................16
Garcetti v. Ceballos, 547 U.S. 410 (2006) ................................................................6
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .....................................................5
Goldberg v. Kelly, 397 U.S. 254 (1970) ..................................................................15
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .........................................7
Holt v. Hobbs, 135 S.Ct. 853 (2015) .......................................................................13
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).............................................5
Mathews v. Eldridge, 424 U.S. 319 (1976) .............................................................15
McConnell v. FEC, 540 U.S. 93 (2003).....................................................................5
Morse v. Frederick, 551 U.S. 393 (2007) ..................................................................7
Murchison v. Rogers, 779 F.3d 882 (8th Cir. 2015) ................................................13
Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359 (11th Cir. 2011) ......................16
*

Pursuant to 11th Cir. R. 28-1(e), an asterisk identifies the citations upon
which amici primarily rely.
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Procunier v. Martinez, 416 U.S. 396 (1974) .............................................. 15, 16, 18
Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816
(1977)....................................................................................................................16
Snyder v. Phelps, 562 U.S. 443 (2011) ......................................................................6
Stanley v. Illinois, 405 U.S. 645 (1972) ...................................................................15
Thornburgh v. Abbott, 490 U.S. 401 (1989) ..................................................... 10, 13
Turner Broadcast System, Inc. v. FCC, 520 U.S. 180 (1997) ...................................9
*Turner v. Safley, 482 U.S. 78 (1987) .............................................................. passim
United States v. Alvarez, 132 S.Ct. 2537 (2012) .......................................................5
United States v. Stevens, 559 U.S. 460 (2010) ..........................................................6

Other Authorities

Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 COLUM.
L. REV. SIDEBAR 16 (2012).....................................................................................9
Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 SUFFOLK U.
L. REV. 441 (1998) ...............................................................................................17
Pamela S. Karlan, Bringing Compassion into the Province of Judging: Justice
Blackmun and the Outsiders, 71 N.D. L. REV. 173 (1995) ..................................17
Peter Margulies, Advocacy as a Race to the Bottom: Rethinking Limits on Lawyers’
Free Speech, 43 U. MEMPHIS L. REV. 319 (2012) ..................................................7

Rules

11th Cir. R. 28-1 ....................................................................................................... ii
11th Cir. R. 32-4 ......................................................................................................20
Fed. R. App. P. 29 ................................................................................................1, 20
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Fed. R. App. P. 32 ....................................................................................................20

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STATEMENT OF THE ISSUES
1. Whether the Florida Department of Corrections’ censorship of Prison
Legal News violates the First Amendment, especially in light of modern
jurisprudence which tends toward ever-greater protection for speech.
2. Whether, consistent with due process, the Florida Department of
Corrections can decline to notify Prison Legal News that additional copies of its
magazine are being impounded once the Department sends one notification.

IDENTITY AND INTEREST OF AMICI CURIAE
Amici are law professors who have previously published on, or have an
interest in, the issue of free speech. Amici have no personal stake in the outcome
of this case, but do have an interest in seeing that First Amendment doctrine
develops in a way that promotes rather than censors free speech. They are listed in
the appendix to this brief.

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SUMMARY OF ARGUMENT
Modern First Amendment jurisprudence trends toward more protections for
speech rights, a direction that should inform this Court’s analysis. In the main,
modern Supreme Court cases are increasingly protective of First Amendment
rights. And the Court stays this course even when confronted with potentially
harmful speech, such as violent video games, funeral protests, and crush videos.
While there are cases where the Court was not as protective as it could have been,
those cases involved unique situations, such as supporting terrorist organizations.
Even Beard v. Banks, which upheld a censorship rule in a prison, was unique in the
prison-speech context, because the regulation only applied to the “worst of the
worst” and was justified by rehabilitation; neither characteristic is present here.
A court conducting the delicate balance between constitutional rights and
the necessities of running a prison must be cognizant that speech rights today are
ever-more protected. The right at issue here—access to current legal
information—is vitally important in prison. The Supreme Court has said access to
legal materials is part of the right to court access; and even in Banks, the regulation
restricting magazines and correspondence from the “worst of the worst” had an
exception for legal materials.
Here, the Florida Department of Corrections (“FDOC”) attempts to justify
abridging that right by asserting that Prison Legal News threatens prison safety, but
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the connection between this justification and the censorship is tangential at best. It
requires three assumptions: prisoners notice certain advertisements in the
magazine, prisoners buy from the advertisers, and the services bought lead to
activity that threatens security. Such a gap between a cause and effect is not the
type of valid, rational connection required when censoring important First
Amendment rights. Moreover, experience confirms that that as applied to Prison
Legal News, the regulation is not a close fit with the asserted justification. The
FDOC is the only prison system in the country that censors Prison Legal News
because of its advertisements. That fact alone should make this Court “particularly
conscious of the measure of judicial deference owed to corrections officials.”
Turner v. Safley, 482 U.S. 78, 90 (1987). Indeed, the experience in Florida
undermines the asserted justification. Separate FDOC facilities have censored the
same issues of Prison Legal News on different grounds; and there are instances
where some facilities admitted issues while others censored them.
Finally, Prison Legal News should be notified each time the FDOC
suppresses one of its magazines. The process due an individual involves a balance
that includes the private interest at stake. And as the private interest becomes more
important, more process is due. The rights at stake in this case are important,
especially when viewed in light of modern free-speech caselaw. Therefore, more
process is required than the bare minimum the district court ordered.
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ARGUMENT AND CITATION OF AUTHORITY
The last five years have been transformative for the First Amendment. The
Supreme Court has rejected bans on corporate political speech, false speech, and
the sale of violent video games to minors; it has rejected a claim for emotional
distress based on derogatory speech hurled at a grieving father; and it has
overturned a conviction for the possession of videos depicting animal cruelty. As
the Court has become more protective of speech rights, it has deferred less and less
to the other branches of government when it comes to justifying bans on speech.
This trend should not pass over those, who in many ways, are most in need
of speech rights regarding legal issues: prisoners. Indeed, the Supreme Court’s test
for whether a regulation impinging a prisoner’s constitutional right is legitimate
leaves ample room for a reviewing court to consider the importance of the right at
stake. And with the benefit of recent insights into the importance of free-speech
rights, this Court has the opportunity to strike the appropriate balance by
recognizing that the regulation at issue is not valid in light of the right at stake.
I. THE MODERN TREND IN FREE-SPEECH LAW DEMANDS A
NUANCED ANALYSIS UNDER TURNER V. SAFLEY
Turner v. Safley sought to balance the competing interests of prisons and
their populations. 482 U.S. at 84. Running a prison is, of course, “an inordinately
difficult undertaking” that requires limiting prisoners’ freedom. Id. at 85. At the
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same time, the Constitution’s protections do not end at the prison gates. Id. at 84.
The balance of these interests and the deference accorded prison officials must be
informed by the modern direction of free-speech jurisprudence.
A. Recent First Amendment Cases Are Increasingly Protective of Speech
On the whole, modern Supreme Court cases have been increasingly
protective of free-speech rights. For example, in Citizens United v. Federal
Election Commission the Court concluded the government could not restrict
independent political expenditures by nonprofit corporations. 558 U.S. 310, 365
(2010). The Court reached that conclusion even though it had to overrule cases
that had been decided less than twenty years earlier: Austin v. Michigan Chamber
of Commerce, 494 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003).
See Citizens United, 558 U.S. at 365.
Similarly, in United States v. Alvarez the Court deemed unconstitutional a
law that criminalized lying about having a military medal. 132 S. Ct. 2537, 2543
(2012). And even though the Court had previously and repeatedly said there was
“no constitutional value in false statements,” Gertz v. Robert Welch, Inc., 418 U.S.
323, 340 (1974); see also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52
(1988), the Alvarez Court concluded that false speech was protected, 132 S. Ct. at
2545–46 (plurality op.); id. at 2553 (Breyer, J., concurring in the judgment).

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This movement toward more protection for speech survives even when the
speech at issue has the potential to harm. In United States v. Stevens the Court
struck down a federal statute that criminalized the production and sale of animalcruelty videos. 559 U.S. 460, 481–482 (2010). Though the statute was directed at
the “growing” market for videos in which helpless animals are “intentional[ly]
torture[d] and kill[ed],” the Court concluded that “animal cruelty” was not an
unprotected class of speech. Id. at 465, 481. Likewise, in Brown v. Entertainment
Merchants Association the Court struck down a California law that banned the sale
of violent video games to minors even though the state had concluded those games
“harm[ed]” the “moral development” of minors. 131 S.Ct. 2729, 2741 (2011).
And in Snyder v. Phelps the Court concluded the First Amendment protected
protestors at a military funeral who held signs bearing slogans such as “Thank God
for Dead Soldiers,” even though a jury had awarded the soldier’s father more than
$10 million for emotional distress. 562 U.S. 443, 448, 450, 459 (2011).
Although some cases buck this protectionist trend, each of those cases
concerned particular speakers or exceptional situations. For instance, Garcetti v.
Ceballos rejected a First Amendment retaliation claim by a deputy district attorney
who had criticized the legitimacy of a search warrant. 547 U.S. 410 (2006). But
the Court was careful to explain that Ceballos had made his criticism “pursuant to
[his] official duties” as a government employee, thus he was “not speaking as [a]
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citize[n] for First Amendment purposes.” Id. at 421. Morse v. Frederick presented
another unique situation: a student at a school-sanctioned event. 551 U.S. 393
(2007). The Court upheld a principal’s decision to suspend a student who held a
banner reading “Bong Hits 4 Jesus,” because “[t]he special characteristics of the
school environment and the governmental interest in stopping student drug abuse
. . . allow schools to restrict student expression that . . . promot[es] illegal drug
use.” Id. at 397, 408 (internal quotation marks and citation omitted).
Holder v. Humanitarian Law Project, a notable aberration in modern freespeech law, was singular. 561 U.S. 1 (2010). The Court held Congress could ban
an association from facilitating the “lawful, nonviolent purposes” of foreign
terrorist groups because the government had an “urgent objective of the highest
order”—combating terrorism. Id. at 8, 28. Whatever might be said about the
Court’s departure from First Amendment principles, see Peter Margulies,
Advocacy as a Race to the Bottom: Rethinking Limits on Lawyers’ Free Speech, 43
U. MEMPHIS L. REV. 319, 366 n.207 (2012) (collecting articles critical of the
opinion), it is clear that any deviation is properly limited to the context in which it
arose—support for terrorist organizations.
Even Beard v. Banks, which would seem germane to the current case
because it upheld a restriction on prison communications, was unique within the
prison context. 548 U.S. 521 (2006). Banks upheld a prison policy that “denie[d]
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newspapers, magazines, and photographs” to “specially dangerous and recalcitrant
inmates” to motivate good behavior. Id. at 524–25, 530 (internal quotation marks
omitted). The situation in Banks was exceptional. First, the regulation applied
only to the “worst of the worst”—inmates who had demonstrated a need for a
“rigorous regime of confinement.” Id. at 530 (internal quotation marks omitted).
Further, the ban was justified, in the Court’s opinion, not by prison security
concerns, but by a rehabilitative goal for the prisoners. Ibid. Essentially, the Court
concluded that the prison was justified in denying recalcitrant prisoners certain
benefits in an effort to “motivate better behavior.” Id. at 530–31 (internal
quotation marks and alteration omitted). Finally, and most importantly, the
regulation in Banks “permitted legal . . . correspondence . . . and legal materials.”
Id. at 526. None of these characteristics are present in the current controversy.
The FDOC’s censorship applies to all prisoners, not just the “worst of the worst.”
The FDOC has not relied on a rehabilitative justification. And the FDOC provides
no exception for legal materials—indeed, the history of the FDOC’s treatment of
Prison Legal News shows that it targets this particular legal publication. See
District Court Order 4–6.
Though these cases—Garcetti, Morse, Humanitarian Law Project, and
Banks—were less protective of speech than the modern jurisprudential trend would
suggest, they were all the result of unique circumstances. Cases involving First
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Amendment claims free from special concerns, however, resonate the common
theme of increasingly robust protection for speech. This progression must inform
the deference courts give to prison officials under the Turner test.
B. Increased Protection Brings Decreased Deference
At bottom, Turner is about deference. And the Supreme Court’s reliance on
deference has decreased in correlation with its increase in protection for speech. In
1997 the Court upheld the constitutionality of the must-carry provisions of the
Cable Television Consumer Protection and Competition Act of 1992. Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997). In doing so, the Court wrote,
“Even in the realm of First Amendment questions where Congress must base its
conclusions upon substantial evidence, deference must be accorded to its findings
as to the harm to be avoided and to the remedial measures adopted for that end.”
Id. at 196. Contrast that obsequious statement with language from more recent
cases. In Brown the Court explained that “ambiguous proof ” of harm could not
support a legislature’s ban on free speech. 131 S. Ct. at 2739. And in Citizens
United the Court noted that Congress offered “only scant evidence that
independent expenditures even ingratiate,” much less corrupt. 558 U.S. at 360; see
also Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112
COLUM. L. REV. SIDEBAR 16, 18–19 (2012).

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Turner itself displays the relationship between the importance of the right
and the deference accorded. Turner involved prison regulations that restricted two
rights: the prisoners’ right to correspond with prisoners at other facilities and the
prisoners’ right to marry. 482 U.S. at 81–82. The Court analyzed these
regulations differently, presumably because the rights at stake were of different
magnitude. When it came to banning correspondence between inmates, the Court
relied on the expertise of the prison officials, reasoning the officials knew better
than the Court what harm the communications could cause. Id. at 91–93. But
when it came to the marriage restriction, the Court gave no weight to the prison
officials. Id. at 94–99. The Court concluded for itself that restricting marriage was
not necessary for prison security or rehabilitation. Id. at 97–99. This varying level
of deference confirms that the more important the right, the less deference owed.
C. Under a Proper Turner Analysis, the Impoundment of Prison Legal
News Violates the First Amendment
Understanding Turner within the framework of a more robust free-speech
doctrine readily demonstrates that the FDOC is violating the First Amendment. At
stake in this litigation are vital First Amendment rights. Not only does Prison
Legal News have a First Amendment right to send its publication to prisoners,
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989), but prisoners have a right to
obtain legal publications, which can inform them of their rights, provide current
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information on legal developments, and enlighten them as they prepare to reenter
society. The Supreme Court has explained that legal materials in prison are vital
because they are bound up in the right to court access. See Bounds v. Smith, 430
U.S. 817, 826 (1977). Even prison officials recognize that legal materials are
important for inmates. The regulation at issue in Turner had an exception for
inmate-to-inmate correspondence “concerning legal matters.” 482 U.S. at 81. And
in Banks as well, the regulation had an exception for “legal materials.” 548 U.S. at
526. The fact that the “worst of the worst” were permitted legal materials
underscores the significance of legal information in prison. See id. at 530.
With a right as important as access to current legal materials, the Court
should be “particularly conscious of the measure of judicial deference owed to
corrections officials.” Turner, 482 U.S. at 90 (internal quotation marks omitted).
To that end the Turner Court identified four factors for courts to consider when
determining the legitimacy of a prison’s restriction of an inmate’s constitutional
right: (1) whether there is a “valid, rational connection” between the regulation
and the prison’s interest; (2) whether there are “alternative means” for the prisoner
to exercise the right; (3) what impact accommodating the right will have on guards
and other inmates; and (4) any “ready alternatives” for furthering the prison’s
interest. Id. at 89–90.

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Examining those factors demonstrates how dubious the FDOC’s justification
is. First, there is not a “valid, rational connection” between the regulation and the
rationale. The FDOC’s vague rules permit prisons to censor materials that have
“prominent” or “prevalent” advertisements for, inter alia, “three-way calling
services; [p]en pal services; [or] the purchase of products or services with postage
stamps.” Fla. Admin. Code Ann. R. 33-501.401(3)(l) (2009) (amended 2010).
Justifying this regulation requires three separate assumptions: (1) prisoners notice
the advertisements in the magazine; (2) prisoners buy from the advertisers because
of the ads they see; and (3) the services or goods bought leads to activity that
disrupts the prison’s security. Such a gap between an asserted cause and effect is
not the type of “valid, rational connection” required when censoring a key First
Amendment right. As the Court recently explained, “Turner requires prison
authorities to show more than a formalistic logical connection between a regulation
and a penological objective.” Beard, 548 U.S. at 535.
The district court concluded prison administrators had “reached an
experience-based conclusion that censorship furthers the legitimate prison
objectives.” District Court Order 40 (alterations removed). Even if experience
could fill in the logical gaps, the administrators’ “experience-based conclusion” is
undermined by experience. No other state in the country censors Prison Legal
News because of its advertising. See District Court Order 49. If forty-nine out of
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fifty prison systems can admit Prison Legal News, it is difficult to understand how
this legal publication could be uniquely dangerous in Florida’s prisons. See Holt v.
Hobbs, 135 S. Ct. 853, 865–67 (2015). Indeed, some FDOC facilities have
admitted issues of Prison Legal News even though other FDOC facilities
impounded the same issues. See District Court Order 42; Murchison v. Rogers,
779 F.3d 882, 890 (8th Cir. 2015) (“The existence of similar material within the
prison walls may serve to show inconsistencies in the manner in which material is
censored such as to undermine the rationale for censorship or show it was actually
censored for its content.”). Thus, experience shows there is not a “valid, rational
connection” between censoring this fundamental free-speech right and prison
security.
The other Turner factors confirm the right at stake here outweighs any
deference owed to prison officials. There are no other means for inmates to
receive the speech contained in Prison Legal News, nor is there any other means
for Prison Legal News to exercise its First Amendment right in speaking to its
subscribers. See Thornburgh, 490 U.S. at 407. The district court claimed “there
are countless other written materials that [Prison Legal News] may send
prisoners.” District Court Order 47. But that is not the test. Speech is unique.
The fact that a speaker may say other things does not undermine his right to say

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what he wants. Cf. Citizens United, 558 U.S. at 337–38 (rejecting the argument
that since a corporation’s PAC can speak, the corporation suffers no real injury).
Moreover, the accommodation of the right in this case will not burden
guards or inmates. The fact that forty-nine other states admit Prison Legal News
dispenses with any contrary claim. In fact, providing an express exception for
Prison Legal News and publications like it would ease the administrative burden of
reviewing every copy sent to inmates. Finally, there are ready alternatives for
prison officials who are concerned about the activity certain advertisements in
Prison Legal News might encourage. Most obvious, officials can enforce the
underlying rules regarding prisoner behavior and monitor (as the FDOC does)
inmate mail and phone calls.
“Premised on mistrust of governmental power, the First Amendment stands
against attempts to disfavor certain subjects or viewpoints or to distinguish among
different speakers, which may be a means to control content.” Citizens United,
558 U.S. at 340. The district court turned that presumption on its head by placing
its full confidence in prison officials, even though they could not justify their ban.
Because the FDOC came forward with a weak justification for denying a
surpassingly important right, they are owed no deference. They have not pointed
to a “direct causal link” and have offered, at best, “ambiguous proof.” Brown, 131
S. Ct. at 2738–39. If permitted to stand, the district court’s order will allow the
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FDOC to continue suppressing legal communication “in the realm where its
necessity is most evident.” Citizens United, 558 U.S. at 372.
II. BECAUSE THE RIGHT AT STAKE IS IMPORTANT, MORE
PROCESS IS DUE THAN THE DISTRICT COURT’S ORDER
REQUIRES
Due process, like prisoner’s rights, involves a balance between the private
interest at stake and the government’s interest. See Procunier v. Martinez, 416
U.S. 396, 418 (1974). Thus, as the importance of the private interest increases, so
too does the amount of process required. Supreme Court cases confirm this
relationship. Compare Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court
did not require elaborate process, with Goldberg v. Kelly, 397 U.S. 254 (1970),
where the Court did. In Eldridge the welfare benefit that was terminated was not
granted “based upon financial need.” 424 U.S. at 340. But in Goldberg the
“welfare assistance [was] given to persons on the very margin of subsistence.”
Eldridge, 424 U.S. at 340 (describing Goldberg). Thus, in Goldberg “the stakes
[were] simply too high for the welfare recipient” to allow the government to
terminate the benefit without a pretermination hearing. 397 U.S. at 266 (alterations
omitted).
Other areas of the law illustrate this relationship. For example, while a
biological parent must be afforded a hearing prior to the state taking away his
child, Stanley v. Illinois, 405 U.S. 645, 657 (1972), a foster parent, having a lesser
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interest in the relationship with his foster children, is not afforded as much process
prior to removing children from the home, Smith v. Organization of Foster
Families for Equality and Reform, 431 U.S. 816, 845–46 (1977). Similarly, those
charged with petty offenses are not constitutionally entitled to a jury trial, Cheff v.
Schnackenberg, 384 U.S. 373, 375 (1966), whereas defendants charged with
serious crimes, because they face serious penalties, are entitled to a jury trial,
Duncan v. Louisiana, 391 U.S. 145, 154 (1968).
Martinez conducted this delicate balance as it relates to prison regulations.
416 U.S. at 418. In particular, Martinez confirmed that the author of a publication
rejected by a prison must be given a reasonable opportunity to protest the prison’s
decision. Ibid.; see also Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1368
(11th Cir. 2011). But the district court’s order undermines the ability of Prison
Legal News to meaningfully protest the prison’s decision.
The district court requires the FDOC to notify Prison Legal News only
“when it first impounds a particular communication by Prison Legal News.”
District Court Order 64. It does not require the FDOC to notify Prison Legal News
of subsequent impoundments of the same communication. In other words, if it
impounds (or does not impound) subsequent copies of the magazine, the FDOC
can keep Prison Legal News in the dark. In addition, if separate facilities impound

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the same issue of Prison Legal News for different reasons, the FDOC only has to
tell Prison Legal News the reason for the first impoundment.
But without knowing each time a copy of its magazine is impounded, Prison
Legal News cannot meaningfully challenge the FDOC’s decision. It may be that
only one facility impounded that issue of Prison Legal News and other facilities are
admitted it. See District Court Order at 42 (noting that the same issue of Prison
Legal News was admitted by some facilities and impounded by others). Or it may
be that different facilities impounded the issue for different reasons. That
information will be relevant to the reviewing authorities considering the
justification for rejecting particular issues of Prison Legal News. And given the
importance of the right at stake, the marginal burden imposed on the FDOC is
justified.
*

*

*

Prisoners “may be the least sympathetic group of ‘outsiders’ in our
constitutional jurisprudence.” Pamela S. Karlan, Bringing Compassion into the
Province of Judging: Justice Blackmun and the Outsiders, 71 N.D. L. REV. 173,
176 (1995). And because they are a neglected segment of society, a “more
searching judicial inquiry” is often appropriate. Erwin Chemerinsky, The
Constitution in Authoritarian Institutions, 32 SUFFOLK U. L. REV. 441, 459 (1998).
That is why forty years ago the Supreme Court declared: “When a prison
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regulation or practice offends a fundamental constitutional guarantee, federal
courts will discharge their duty to protect constitutional rights.” Martinez, 416
U.S. at 405–406. Because the rights at stake in this litigation are all the more
important under modern First Amendment jurisprudence, this case is one in which
the Court must discharge its duty to ensure that speech is not denied “in the realm
where its necessity is most evident.” Citizens United, 558 U.S. at 372.

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CONCLUSION
For the reasons set forth above, this Court should reverse the district court’s
judgment as to the First Amendment and expand its order regarding due process.

Respectfully submitted,
/s/Jason Burnette
JASON BURNETTE
Counsel of Record
JONES DAY
1420 Peachtree St NE
Atlanta, GA 30309
Telephone: (404) 581-8724
jtburnette@jonesday.com
ANDREW BENTZ
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Telephone: (202) 879-3939
Counsel for Amici Curiae
December 14, 2015

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CERTIFICATE OF COMPLIANCE WITH 11TH CIR. R. 28-1(M)
This brief complies with the type-volume limitation of Fed. R. App. P. 29(d)
because this brief contains 4,046 words, excluding the parts of the brief exempted
by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in proportionally spaced typeface using Microsoft Word in 14-point
Times New Roman font.
/s/Jason Burnette
Jason Burnette

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APPENDIX—LIST OF SIGNATORIES*
HADAR AVIRAM
Professor, UC Hastings College of Law
ERWIN CHEMERINSKY
Dean of the Law School, Distinguished Professor of Law, and Raymond Pryke
Professor of First Amendment Law, UC Irvine School of Law
BRYAN FAIR
Thomas E. Skinner Professor of Law, University of Alabama School of Law
MALCOLM FEELEY
Claire Sanders Clements Dean’s Professor of Law, UC Berkeley School of Law
PATRICK GUDRIDGE
Professor of Law, University of Miami School of Law
JENNIFER KINSLEY
Associate Professor of Law, Northern Kentucky University Salmon P. Chase
College of Law
ANDREW KOPPELMAN
John Paul Stevens Professor of Law, Northwestern University Pritzker School of
Law
ALAN MILLS
Adjunct Professor, Northwestern University Pritzker School of Law
MICHAEL MUSHLIN
Professor of Law, Pace Law
KERAMET REITER
Assistant Professor, UC, Irvine School of Law
*

The views expressed in this brief are those of the individual signatories and
not those of the institutions with which they are affiliated.
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IRA ROBBINS
Barnard T. Welsh Scholar and Professor of Law and Justice, American University
Washington College of Law
LAURA ROVNER
Associate Professor of Law, University of Denver College of Law
JONATHAN SIMON
Adrian A. Kragen Professor of Law, UC Berkeley School of Law
RODNEY SMOLLA
Dean & Professor of Law, Widener University, Delaware School of Law
NADINE STROSSEN
John Marshall Harlan II Professor of Law, New York Law School
SONJA WEST
Associate Professor of Law, University of Georgia Law

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CERTIFICATE OF SERVICE
I hereby certify that on December 14, 2015, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Eleventh Circuit by using the CM/ECF system. I certify that all participants in
this case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.
/s/Jason Burnette
Jason Burnette



 

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