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Amicus Curiae Brief in the US Supreme Court for 18 Media Organizations

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No. 18-355

In The

Supreme Court of the United States
-----------------------------------------------------------------PRISON LEGAL NEWS,
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
-----------------------------------------------------------------BRIEF OF 18 ORGANIZATIONS THAT
-----------------------------------------------------------------THOMAS R. JULIN
Counsel of Record
600 Brickell Avenue,
Suite 3500
Miami, FL 33131
(305) 376-6007
Counsel for Amici Curiae
COCKLE LEGAL BRIEFS (800) 225-6964

TABLE OF AUTHORITIES ...................................


INTEREST OF AMICI CURIAE ...........................


SUMMARY OF THE ARGUMENT .......................


ARGUMENT ...........................................................



The Court Should Grant the Writ Because
the Eleventh Circuit Upheld a Rule that
Lacks Specific Criteria To Prevent its Use
for Improper Censorship ............................. 10


The Court Should Grant the Writ to Clarify
That Content-Based Prison Correspondence
Rules are Subject to Stricter Scrutiny Than
Turner v. Safley Provides ............................ 17

CONCLUSION .......................................................


Barrett v. Orman, 373 F. App’x 823 (10th Cir.
2010) ........................................................................13
Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ...........6
Beard v. Banks, 548 U.S. 521 (2006) ..........................19
Bigelow v. Virginia, 421 U.S. 809 (1975) ....................23
Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485 (1984) ........................................................11
Burns v. Martuscello, 890 F.3d 77 (2d Cir. 2018) .......21
City of Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750 (1988) ........................................... 15, 16
Daker v. Warren, 660 F. App’x 737 (11th Cir.
2016) ........................................................................13
Davis v. Goord, 320 F.3d 346 (2d Cir. 2003) ...............21
F.C.C. v. Fox Television Stations, Inc., 567 U.S.
239 (2012) ................................................................13
Fed. Elections Comm’n v. Wis. Right to Life, 551
U.S. 449 (2007) ........................................................12
Freedman v. Maryland, 380 U.S. 51 (1965) ................15
Grayned v. City of Rockford, 408 U.S. 104 (1972) ........14
Jacklovich v. Simmons, 392 F.3d 420 (10th Cir.
2004) ........................................................................13
Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir.
1989) ........................................................................21

Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash.
1997) ........................................................................21
Perry v. Secretary, Florida Dep’t of Corr., 664
F.3d 1359 (11th Cir. 2011) .......................................13
Prison Legal News v. Columbia County, Case
No. 3:12-cv-00071-SI, 2012 WL 1936108 (D.
Or. May 29, 2012) ....................................................20
Prison Legal News v. Columbia Cty., 942 F. Supp.
2d 1068 (D. Or. 2013)...............................................21
Prison Legal News v. Cook, 238 F.3d 1145 (9th
Cir. 2001) .................................................................20
Prison Legal News v. County of Ventura, No. 140773-GHK (EX), 2014 WL 2736103 (C.D. Cal.
June 16, 2013) .........................................................21
Prison Legal News v. Crosby, No. 3:04-cv-14-J16TEM (M.D. Fla. July 28, 2005) .............................7
Prison Legal News v. Lehman, 397 F.3d 692 (9th
Cir. 2005) .................................................................20
Prison Legal News v. McDonough, 200 F. App’x
873 (11th Cir. 2006) ...................................................8
Prison Legal News v. Secretary, Florida Dep’t of
Corr., 890 F.3d 954 (11th Cir. 2018) .................... 9, 14
Prison Legal News v. Secretary, No. 15-14220
(11th Cir. May 10, 2016)............................................1
Procunier v. Martinez, 416 U.S. 396
(1974) ................................................. 2, 10, 13, 14, 18
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .........19

Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) ............21
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...... 6, 23
Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334 (2014) ..............................................................12
Thornburgh v. Abbott, 490 U.S. 401 (1989) .... 13, 18, 20
Turner v. Safley, 482 U.S. 78 (1987) ................... passim
United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803 (2000) ........................................................23
U.S. Const. amend. I ........................................... passim
U.S. Const. amend. XIV ........................................ 10, 25
Rules of the Supreme Court
Rule 37.2 ....................................................................1
Rule 37.6 ....................................................................1
David M. Reutter, Prison Food and Commissary
Services: A Recipe for Disaster, 29 PRISON LEGAL
NEWS (Aug. 2018) ......................................................1
David A. Franklin, Looking Through Both Ends
of the Telescope: Facial Challenges and the
Roberts Court, 36 HASTINGS CONST. L.Q. 689
(2009) .......................................................................12

Many of the amici filing this brief filed an amicus
brief in support of Prison Legal News in the District
Court. They also sought leave to file an amicus brief in
the United States Court of Appeals for the Eleventh
Circuit to reiterate their concerns regarding the vagueness of the rule at issue and, specifically, how that
vagueness can be used to conceal that official decisions
to impound Prison Legal News are based on disagreement with editorial content, rather than violations of
the rule.2 The Secretary of the Florida Department of
Corrections objected to the filing of that amicus brief
and the Eleventh Circuit refused to allow it. Prison
Legal News v. Secretary, No. 15-14220 (11th Cir. May
10, 2016) (Order Denying Motion for Leave to File
Amicus Brief ). This brief reiterates the concerns of
the institutional media that the rule violates the First
Amendment for the reasons stated in the petition
and suggests that an additional question should be
accepted for review, namely:

Pursuant to Rules 37.2 and 37.6 of the Rules of the Supreme Court, all parties have consented to the filing of this amici
curiae brief. No counsel for any party authored this brief in whole
or in part, nor did any person or entity, other than amici or their
counsel, make a monetary contribution to the preparation of this
brief. The parties have received notice of this filing.
A recent front-page article illustrates why prison officials
might be tempted to use the vagueness of the challenged rule to
impound the publication for an improper purpose. David M. Reutter, Prison Food and Commissary Services: A Recipe for Disaster,
29 PRISON LEGAL NEWS 1 (Aug. 2018) https://www.prisonlegal (last visited Oct. 3, 2018).

Does a state prison rule which relies on vague
standards to screen incoming mail facially violate the First and Fourteenth Amendments?
This brief also shows that, because the rule at issue squarely targets the content of advertising, the
standard of review set forth in Turner v. Safley, 482
U.S. 78 (1987), has no application here. The Turner
standard applies solely to rules which are themselves
content-neutral. Where rules target content, a heightened standard of review is required by Procunier v.
Martinez, 416 U.S. 396 (1974). The Eleventh Circuit ignored this fundamental principle and reviewed the
substance of the rule at issue under the Turner standard.
Allied Daily Newspapers of Washington and
Washington Newspaper Publishers Association are
trade associations for newspapers. Washington newspapers are particularly interested in this matter because Paul Wright, the editor and co-founder of Prison
Legal News, was imprisoned in Washington for 17
years prior to his release in 2003. Mr. Wright founded
Prison Legal News in 1990 while imprisoned.
The American Society of News Editors was
founded in 1922 to “defend the profession from unjust
assault” and is primarily an organization of news leaders in the United States.
Association of Alternative Newsmedia is a 501(c)(6)
organization that represents 112 alternative newsmedia organizations throughout North America. AAN

member publications reach more than 38 million active, educated, and influential adults.
The Authors Guild, Inc., was founded in 1912 and
is a national non-profit association of more than 9,000
professional, published writers of all genres.
The Citrus County Chronicle was founded in the
1890s and is the oldest business in Citrus County, Florida.
Criminal Justice Journalists is the first national
organization of journalists who cover crime, court, and
prison beats. It was founded by Ted Gest, then of U.S.
News and World Report, and David Krajicek, who has
covered crime for the New York Daily News and other
First Amendment Foundation, Inc., believes that
government openness and transparency are critical to
citizen trust and involvement in our democratic society—without Government in the Sunshine, civic engagement cannot bloom. Through ongoing monitoring
of Florida’s public records and open meetings laws and
the education of government officials and the citizens
they serve about those laws, the Foundation promotes
the public’s constitutional right to oversee and to participate in the governance process.
Florida Press Association, Inc., was founded in
1879 as a nonprofit corporation to protect the freedoms
and advance the professional standards of the press of

The Marshall Project is a nonprofit, nonpartisan
online journalism organization focusing on issues related to criminal justice in the United States, led by
former hedge fund manager Neil Barsky and former
New York Times executive editor Bill Keller.
National Association for Rational Sexual Offense
Laws distributes The Digest bimonthly to 1,000 inmates. It is the nation’s oldest regularly published
journal exclusively dedicated to issues concerning sex
offenders and sex offender registries.
National Coalition Against Censorship was
formed in 1973 to promote freedom of thought, inquiry,
and expression and oppose censorship in all its forms.
The National Press Photographers Association is
the leading voice advocating for the work of visual journalists today.
New England First Amendment Coalition is a
broad-based organization of people who believe in the
power of transparency in a democratic society. Its
members include lawyers, journalists, historians, librarians, and academicians, as well as private citizens
throughout New England.
Pacific Northwest Newspaper Association is an association of daily newspapers in Alaska, Idaho, Montana, Oregon, Utah, Washington, Alberta, and British
Columbia advancing the newspaper industry through
information, education, and service.
The Press Freedom Defense Fund supports journalists, news organizations, and whistleblowers who

are targeted by powerful figures because they have
tried to bring to light information that is in the public
interest and necessary for a functioning democracy.
The Reporters Committee for Freedom of the
Press is an unincorporated nonprofit association. The
Reporters Committee was founded by leading journalists and media lawyers in 1970, when the nation’s
news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential
sources. Today, its attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the
newsgathering rights of journalists.
The Joseph L. Brechner Center for Freedom of Information at the University of Florida exists to advance understanding, appreciation, and support for
freedom of information in the state of Florida, the nation, and the world.
Although this case involves a prison rule that has
had a particularly harsh impact on Prison Legal News
because it specializes in serving the prison community,
the case is of importance to the Amici because the rule
threatens every publication that is distributed in Florida prisons, such as the Tallahassee Democrat, the
Gainesville Sun, and the Miami Herald. All of these
publications carry extensive advertising for goods and
services that prisoners might wish to use now or in the
future but which they are prohibited from obtaining
while in prison. 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.
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. Advertising informs readers about
products and services that may be of vital importance
to them. In this case, the advertising in Prison Legal
News advises prisoners about products and services
that are commonly available to prisoners outside of
Florida. Awareness of these products and services may
assist prisoners who wish to challenge the validity of
restrictions on those goods or services or to advocate
for the lifting of those restrictions. Advertising also
helps keeps costs to readers low. This Court invalidated restrictions on speech vital to advertising in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011). The Court
commented that a “ ‘consumer’s concern for the free
flow of commercial speech often may be far keener than
his concern for urgent political dialogue’ ” and pointed
out that the marketing data at issue in that case could
“save lives.” Id. at 566 (quoting Bates v. State Bar of
Ariz., 433 U.S. 350, 364 (1977)).
This case also is of importance to the Amici because the history of the litigation shows that First
Amendment principles are seriously endangered when
federal courts decline to adjudicate issues during the
temporary cessation of unconstitutional restrictions on
speech. Prison Legal News filed an action similar to
this one in 2004. It sought a declaration that the

Florida Department of Corrections (“the Department”
or “FDOC”) had violated the First Amendment by (1)
refusing to allow delivery of Prison Legal News to prisoners because it contained ads for three-way calling
services and pen-pal services and accepted postage
stamps as payment for subscriptions, and (2) prohibiting prisoners from accepting compensation for articles
they wrote for newspapers and magazines. See Prison
Legal News v. Crosby, No. 3:04-cv-14-J-16TEM (M.D.
Fla. July 28, 2005) (DE-87 (Order, Findings of Fact and
Conclusions of Law) at 2–3).
In apparent reaction to the suit, the Department
amended its rules effective March 16, 2005, to provide
that a publication such as Prison Legal News would
not be rejected based on its inclusion of advertisements
for prohibited products or services, as long as those
advertisements were “ ‘merely incidental to, rather
than being the focus of, the publication.’ ” (Id. at 8–9
¶¶ 18–19.) After the amendment, the Department allowed distribution of Prison Legal News to continue.
Prison Legal News insisted that the amended rule
posed a continuing threat to it, notwithstanding that
its distribution was being permitted. U.S. District
Judge John H. Moore, II, conducted a three-day bench
trial and found that the Department’s prior prohibition
of distribution served no governmental purpose whatsoever because the Department effectively could stop
the inmates from using the advertised services
whether they saw advertising for them or not. (Id. at
14–15.) But Judge Moore also entered judgment as a
matter of law for the Department because it was no

longer prohibiting distribution. (Id. at 16–17.) The
Eleventh Circuit agreed that the Department had
mooted the challenge by adopting an amended regulation and then not invoking the new rule to prohibit further distribution. Prison Legal News v. McDonough,
200 F. App’x 873, 877–78 (11th Cir. 2006). The Eleventh
Circuit held the Department had shown “ ‘no intent to
ban PLN based solely on the advertising content at issue in this case’ in the future.” Id. at 878. But the Eleventh Circuit added: “We have no expectation that
FDOC will resume the practice of impounding publications based on incidental advertisements. As to the
current rule, we offer no opinion on its constitutionality.” Id. at 878. This ruling allowed the Department to
escape an adjudication that its amended rule violates
the First Amendment.
In light of this history, the Department’s invocation of its new rule, as it was amended in 2009, should
have been viewed with great skepticism, given that the
2009 amendment greatly exacerbated the problems
found in the 2005 rule.3 The new rule: (1) contained no

The amended rule provides:
(3) Inmates shall be permitted to receive and possess publications per terms and conditions established in this rule
unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any
institution of the department, or any privately operated institution housing inmates committed to the custody of the department, or when it is determined that the publication
might facilitate criminal activity. Publications shall be rejected when one of the following criteria is met:

procedural safeguards to prevent its use for improper
censorship, (2) utilized such vague standards that procedural safeguards could not be effective, and (3) targeted advertising based on content. The district court
recognized the first of these problems and imposed a
mandatory injunction to cure it, but failed to recognize
that procedural safeguards are useless in the absence
of specific standards for the safeguards to apply. The
district court also ignored this Court’s rulings that the
Turner v. Safley standard is not sufficient for the purpose of reviewing content-based restrictions on prison
correspondence. The Eleventh Circuit then affirmed all
aspects of the district court’s decision. Prison Legal
News v. Secretary, Florida Dep’t of Corr., 890 F.3d 954
(11th Cir. 2018).

(l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than
being incidental to, the publication or the advertising is
prominent or prevalent throughout the publication.
1. Three-way calling services;
2. Pen pal services;
3. The purchase of products or services with postage
stamps; or
4. Conducting a business or profession while incarcerated.
(m) It otherwise presents a threat to the security, order or
rehabilitative objectives of the correctional system or to the
safety of any person.

The Court should grant the writ because:
Point I. The challenged rule violates the First and
Fourteenth Amendments due to vagueness. It allows
prison officials to impound and reject publications sent
to prison subscribers for improper censorial purposes
that cannot be detected even when the procedural safeguards mandated by the district court are put in place.
Point II. The challenged rule prohibits publication
on the basis of content. The standard applied in Turner
v. Safley applies solely to content-neutral prison correspondence rules. The stricter standard established in
Procunier v. Martinez governs content-based prison
correspondence rules, but that standard was not applied by the Eleventh Circuit or the district court. The
rule challenged in this case targets content and therefore should have been evaluated in accordance with
the Martinez standard. In any event, the rule is invalid
under either the Martinez or Turner standards.

The Court Should Grant the Writ Because
the Eleventh Circuit Upheld a Rule that
Lacks Specific Criteria To Prevent its
Use for Improper Censorship
At the heart of this case is a vague regulation of
advertising in a news magazine sent to subscribers in

prison. The district court recognized as much, noting
the Department’s “inconsistent censorship decisions,”
the “[i]nconsistent application [of the rule] by mailroom
staff,” that “vagueness is principally responsible for
the Rule’s disparate application,” and that the “most
disconcerting,” “worrisome fact[ ] uncovered at trial” “is
the Rule’s vagueness.” (DE-279 at 43, 47 n.24, 50.)4
Yet, the district court upheld the rule, contending
that the publisher of Prison Legal News had asserted
its vagueness claim too late—three months before the
trial date of May 13, 2013. (DE-279 at 3 n.5.) In essence, the district court held that it could easily discern
the facial invalidity of the rule, but was constrained to
uphold the rule because the vagueness challenge had
not been precisely labeled as such early enough in the
litigation. The vagueness of the rule should not have
been skirted in this manner because vagueness played
a critical role in all aspects of the publisher’s challenge.
The Eleventh Circuit should have addressed the rule’s
As this Court has explained, judges, as “expositors
of the Constitution,” must conduct an independent review of the entire record to ensure that a judgment
does not result in a “ ‘forbidden intrusion on the field of
free expression.’ ” Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 499, 511 (1984) (citations omitted). The avoidance below of a patent vagueness problem (as specifically found by the district court) on
procedural grounds is distinct, of course, from a district

The notation “DE” indicates a citation to a docket entry in
the district court.

court judgment which violates the First Amendment
through the imposition of a damage award. But the result is no less problematic. In both instances, the First
Amendment is violated. Amici urge the Court to cut
through the fog that arises from the district court’s
narrow focus on the petitioner’s as-applied challenge
and to grant certiorari to address the problem at the
heart of this case: the fatal vagueness of an advertising
regulation that gives prison officials so much discretion that they can conceal actions taken to prevent the
distribution of editorial content with which they disagree. This is a particularly acute problem for the publisher of Prison Legal News, given the nature of its
editorial content—articles that inform prisoners about
their legal rights—and the small number of subscribers (70 Florida prisoners at the time of trial). Of course,
if the rule is facially invalid, then it goes without saying that it also is invalid as applied, as Prison Legal
News contends.
This Court has recognized that an as-applied challenge can result in effective facial invalidation of a
challenged law or regulation, even when the parties
ask only for a ruling as applied.5 Facial invalidation is
particularly appropriate in First Amendment cases in

E.g., David A. Franklin, Looking Through Both Ends of the
Telescope: Facial Challenges and the Roberts Court, 36 HASTINGS
CONST. L.Q. 689 (2009) (citing Fed. Elections Comm’n v. Wis.
Right to Life, 551 U.S. 449 (2007), a case arising from an as-applied challenge to advertising regulation, as an example of this
phenomenon); see also Susan B. Anthony List v. Driehaus, 134
S. Ct. 2334, 2340 n.3 (2014) (“petitioners’ as-applied claims ‘are
better read as facial objections to Ohio’s law.’ . . . Accordingly, we
do not separately address the as-applied claims.”).

which a holding that a statute is unconstitutional as
applied will allow a vague and overly broad statute to
chill speech. F.C.C. v. Fox Television Stations, Inc., 567
U.S. 239, 253–54 (2012) (“When speech is involved, rigorous adherence to [specificity] requirements is necessary to ensure that ambiguity does not chill protected
speech”). If certiorari is granted, the parties should be
directed to address this fundamental vagueness issue
as well as whether the Eleventh Circuit provided the
appropriate level of scrutiny to the challenged rules.
This Court held in Martinez that an inmate must
be notified of the rejection of material written by or addressed to him, that the author of the material must
be given a reasonable opportunity to protest the decision, and that complaints must be referred to a prison
official other than the person who originally rejected
the correspondence. Martinez, 416 U.S. at 418–19. The
Martinez procedural safeguards, unlike the Martinez
scrutiny standard, have not been lowered or changed
by subsequent decisions and they remain binding today.6 The Eleventh Circuit has regularly recognized
this proposition7 and did so in this case. Prison Legal

Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004)
(holding in case filed by Prison Legal News that the procedural
requirements set forth in Martinez survived the ruling in Thornburgh v. Abbott, 490 U.S. 401 (1989), partially overruling Martinez); Barrett v. Orman, 373 F. App’x 823, 826 (10th Cir. 2010)
Daker v. Warren, 660 F. App’x 737, 742 (11th Cir. 2016)
(quoting Perry v. Secretary, Florida Dep’t of Corr., 664 F.3d 1359,
1368 n.2 (11th Cir. 2011), which relied on Martinez) (“[W]hen a
correctional facility is going to reject a letter, mail, or package it
must (1) provide written notice to the inmate of mail addressed to

News, 890 F.3d at 976. Indeed, the Eleventh Circuit affirmed the district court’s injunction requiring FDOC
to provide the procedural safeguards that the rule
lacks. But those safeguards cannot prevent unconstitutional censorship where the underlying rule or regulation is fatally vague.
In Martinez, the plaintiff argued that the regulations allowing censorship of prisoner mail in that case
were vague enough to allow “censorship of constitutionally protected expression without adequate justification.” Martinez, 416 U.S. at 401–02. This Court did
not address the argument in Martinez because the regulations had not been challenged below on vagueness
grounds. Id. Here, the publisher of Prison Legal News
did attack the rule on vagueness grounds. (DE-14 at
13.) During the pleadings stage, the publisher did not
specifically denominate one of its counts as a vagueness challenge. When it sought to do so in order to alleviate any doubt about the nature of its challenge, the
district court refused to allow the amendment and
then declined to adjudicate the vagueness of the rule
(while still expressing its opinion that the rule was
vague). In doing so, the district court shirked its obligation to decide whether the rule suffered from undue
vagueness. The requirement of clear and specific criteria is a fundamental component of both due process,
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)
him; (2) provide the author of the mailing with a ‘reasonable opportunity to protest th[e] decision;’ and (3) have an official other
than the one who made the initial rejection of the correspondence
review the complaint.”).

(“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not
clearly defined.”), and First Amendment challenges,
Freedman v. Maryland, 380 U.S. 51, 56 (1965) (“In the
area of freedom of expression it is well established that
one has standing to challenge a statute on the ground
that it delegates overly broad licensing discretion to an
administrative office[.]”). The publisher of Prison Legal
News attacked the rule on both vagueness and substantive grounds in its First Amended Complaint and
through its appeal to the Eleventh Circuit; it continues
to do so in its petition for a writ of certiorari here. The
Court should require the parties to address this issue.
Amici have a particular interest in ensuring that
the Court does not allow the vague rule at issue here
to stand because, as discussed above, Amici and the
news organizations and journalists they represent
also are subject to the rule when they send their newspapers and magazines to Florida prisoners. Amici recognize that other forms of distribution licensing, such
as newsrack regulations, are constitutionally justifiable by the legitimate interest that a city may have in
safety and aesthetics, see generally City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750 (1988), just
as prison regulations may be justified by legitimate
penological interests. But this Court has recognized
that such regulations sometimes may be used for
improper censorial purposes if the discretion of those
administering the regulations is not carefully restricted by clear and specific guidelines. Id. at 772. This
Court has explained that facial attacks on vagueness

grounds are allowed because “a licensing statute placing unbridled discretion in the hands of a government
official or agency constitutes a prior restraint and may
result in censorship. And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge.” Id. at 757
(citations omitted). Those risks, this Court held, include the risk that the licensor’s discretion will intimidate parties into censoring their own speech and that
such self-censorship will be “immune to an ‘as applied’
challenge.” Id.
The rule at issue has multiple vagueness problems
that can be exploited for improper censorial purposes.
Initially, the rule directs prison officials to determine
whether a publication carries an advertisement promoting “three-way calling services,” “pen-pal services,”
purchases by postage stamps, or “conducting a business or profession.” Yet, none of these terms is defined
by the rule or otherwise. Their meanings are far from
clear. Next, the rule does not entirely ban the advertising that it describes. It only bans advertising that is
the focus of, rather than incidental to, the publication
or that is prominent or prevalent throughout the publication. These highly-subjective words allow prison officials wide discretion to favor certain publications
over others, notwithstanding that they all carry the
same type of advertising. Because the terms are so
vague, they do not provide judges with meaningful
standards by which they can assess whether prison authorities have impounded or rejected a publication because it carried content which constitutionally can be

banned or because it carried content that is protected
by the First Amendment, such as political endorsements or criticism of prison regulation or administration. The danger that such censorship will be imposed
is quite apparent from the fact that Prison Legal News
has been a critic of prison policies and practices across
the country since its creation by a former prisoner. A
vague and standardless licensing scheme like the one
before this Court, that allows administrators to
achieve indirectly what they cannot achieve directly,
simply cannot stand.
The Court Should Grant the Writ to Clarify
That Content-Based Prison Correspondence
Rules are Subject to Stricter Scrutiny
Than Turner v. Safley Provides
Ignoring the vagueness of the rule, the Eleventh
Circuit proceeded directly to review of the substance of
the rule and, in doing so, applied the wrong standard—
the four-part standard this Court articulated in Turner
v. Safley for the review of content-neutral prison regulations. The Eleventh Circuit noted that “under Turner
we owe ‘wide-ranging’ and ‘substantial’ deference to
the decisions of prison administrators because of the
‘complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal
with such problems.’ ” Prison Legal News, 90 F.3d at
965 (citations omitted).

But this Court has been clear that the Turner
standard is to be used only where the challenged regulation is “neutral,” Thornburgh, 490 U.S. 401 at 414–
16, meaning that the regulation applies “without regard to the content of the expression.” Turner, 482 U.S.
at 90. If the regulation is content-based, then the
Turner standard does not apply. Instead, at least the
heightened standard of review established in Martinez
must be applied. In Martinez, the Court had before it
regulations which directed inmates not to write letters
in which they “ ‘unduly complain’ ” or “ ‘magnify grievances.’ ” See Martinez, 416 U.S. at 399. The regulations
defined as contraband those writings “expressing inflammatory political, racial, religious or other views or
beliefs” and “provided that inmates may not send or
receive letters that pertain to criminal activity; are
lewd, obscene, or defamatory; contain foreign matter,
or are otherwise inappropriate.” Id. at 399–400 (internal quotation marks omitted). These content-based
rules necessitated review to assess whether they “further[ed] an important or substantial governmental interest unrelated to the suppression of expression,” and
also were “no greater than is necessary or essential to
the protection of the particular governmental interest
involved.” Id. at 413. The Thornburgh decision overruled Martinez only with respect to its application to
content-neutral rules, not content-based rules.
Thus, if FDOC had adopted a regulation that
prohibited political advertising that criticized Governor Rick Scott, the rule would not stand if it were
merely reasonably related to a legitimate penological

objective. It would be upheld only if it survived Martinez-type intermediate scrutiny, or perhaps even strict
scrutiny. See Reed v. Town of Gilbert, 135 S. Ct. 2218,
2226 (2015) (citations omitted) (“Content-based laws—
those that target speech based on its communicative
content—are presumptively unconstitutional and may
be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.”).
The rule at issue here clearly targets the content
of ads that offer services that are prohibited by FDOC.
Such ads communicate to prisoners in Florida that
those services are available to prisoners in the jails of
other states, likely causing Florida prisoners to wonder: why aren’t those services available to us? In Beard
v. Banks, 548 U.S. 521 (2006), Justice Stevens wrote:
“What is perhaps most troubling about the prison
regulation at issue in this case is that the rule comes
perilously close to a state-sponsored effort at mind control.” Beard, 548 U.S. at 552 (Stevens, J., dissenting).
While the majority found that the regulation at issue
in that case—which had been designed as a form of
punishment and denied most types of publications to
the worst prisoners—did not cross that line, the regulation at issue here does cross that line, and a more
searching form of scrutiny than that afforded by
Turner was required.
This argument should not be misread as expressing any disagreement with the petitioner that the rule

should be invalidated under Turner.8 The Turner
standard “ ‘is not toothless.’ ” Thornburgh, 490 U.S. at
414 (citation omitted). In Turner itself, the Court applied the standard to invalidate a regulation that
allowed an inmate to marry only if the prison superintendent found compelling reasons to allow the marriage. Turner, 482 U.S. at 82, 99. In Prison Legal News
v. Lehman, 397 F.3d 692 (9th Cir. 2005), the Ninth
Circuit applied the standard to reject the Washington
Department of Corrections’ arguments that allowing
Prison Legal News in its prisons increased the risk of
contraband in the mail, increased the volume of prison
mail, increased the risk of fire, and reduced the efficiency of inmate cell searches. In Prison Legal News v.
Cook, 238 F.3d 1145 (9th Cir. 2001), the Ninth Circuit
applied the standard to reject the Oregon Department
of Corrections’ arguments that allowing Prison Legal
News in its prisons made it hard to find contraband in
the mail, created an undue fire hazard, allowed inmates to hide contraband in their cells, and reduced
correctional officer efficiency. In Prison Legal News v.
Columbia County, Case No. 3:12-cv-00071-SI, 2012 WL
1936108 (D. Or. May 29, 2012), a district court applied
the standard to preliminarily enjoin a prison rule


Amici agree that the rule for review here cannot survive
even the lower standard set by Turner for content-neutral rules
because the Turner standard actually does impose significant limits on discretion. But even if the rule could survive Turner scrutiny, the Eleventh Circuit decision should be reversed because
Martinez scrutiny, at a minimum, is required.

forbidding correspondence other than postcards.9 In
Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997),
a district court applied the Turner standard to conclude that, although a prohibition against delivery of
bulk mail to inmates may be constitutional, an inmate’s right to receive his personal subscription to
Prison Legal News was violated by application of that
policy. And, in Prison Legal News v. County of Ventura,
No. 14-0773-GHK (EX), 2014 WL 2736103 (C.D. Cal.
June 16, 2013), the court preliminarily enjoined similarly restrictive mail policies under the Turner standard.
In other contexts, the Turner standard also has required invalidation of actions of individual prison officials.10 The standard clearly has teeth and, properly
applied, requires invalidation of the FDOC rule. Judge
John H. Moore’s decision in the initial Prison Legal
News lawsuit cried out for a finding that no rational

A final judgment for the plaintiffs later was entered. Prison
Legal News v. Columbia Cty., 942 F. Supp. 2d 1068 (D. Or. 2013).
See, e.g., Burns v. Martuscello, 890 F.3d 77, 93 (2d Cir.
2018) (prisoner had First Amendment right not to be punished for
refusing to testify falsely against other prisoners or to snitch
truthfully on other prisoners); Shakur v. Selsky, 391 F.3d 106, 116
(2d Cir. 2004) (guards’ confiscation of New Afrikan political literature “pursuant to personal prejudices” violated an inmate’s First
Amendment rights); Davis v. Goord, 320 F.3d 346, 351 (2d Cir.
2003) (“a prisoner’s right to the free flow of incoming and outgoing
mail is protected by the First Amendment”); Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (upholding jury verdict
finding First Amendment retaliation where inmates who were
“outspoken critics of the [prison] administration” were transferred to new facilities).

connection exists between FDOC’s rule and a legitimate and neutral government interest. Judge Moore
ruled after a bench trial that the state is capable of
preventing prisoners from using services that are the
subject of the challenged rule whether the prisoners
see the advertisements or not. No contradictory evidence was offered by the state at the trial in this case.
The rule served no legitimate penological purpose
whatsoever and prevented prisoners from receiving
the entire contents of Prison Legal News that prisoners
might find useful.
The second Turner factor also weighs in favor of
invalidation of the rule because enforcement left the
publisher of Prison Legal News with no alternative
means of distributing the banned advertising and,
worse, no economically viable means of continuing the
distribution of Prison Legal News to Florida prisoners
at all. As the record showed, Prison Legal News has a
small base of approximately 7,000 subscribers across
the country, and its operation is supported by a small
number of advertisers and a small group of employees.
Revenues barely meet expenses. Continued not-forprofit publication is the product of the petitioner’s devotion to serving the informational needs of prisoners
rather than any desire for financial gain. The record
also showed that publication of a separate edition of
the Prison Legal News that excluded restricted advertisements would be cost prohibitive, so the petitioner
had no alternative other than to halt all distribution in
the Florida prison system to comply with the rule as it
had been enforced.

The fact that prisoners cannot presently use the
advertised services also does not diminish the magnitude of the violation of the petitioner’s First Amendment right to provide the ads at issue to Florida
prisoners because the rule acts as an effective prohibition of distribution of Prison Legal News entirely.
Even if the burden of creating a separate edition
had not been shown to be cost-prohibitive, the First
Amendment would not allow such a burden on speech
without justification. “[T]he ‘distinction between laws
burdening and laws banning speech is but a matter of
degree’ and [ ] the ‘Government’s content-based burdens must satisfy the same rigorous scrutiny as its
content-based bans.’ . . . Lawmakers may no more silence unwanted speech by burdening its utterance
than by censoring its content.” Sorrell, 564 U.S. at 565–
66 (quoting United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 812 (2000)).
This Court also has made clear that states may
not ban advertising of goods or services that are unlawful if the goods or services may lawfully be sold
elsewhere. See Bigelow v. Virginia, 421 U.S. 809 (1975)
(invalidating conviction for publishing in Virginia an
advertisement for abortion clinics in New York). A
state “may not, under the guise of exercising internal
police powers, bar a citizen of another State from disseminating information that is legal in that State.” Id.
at 824–25. This principle is of vital importance because
newspapers distributed in Florida prisons include advertisements for alcoholic beverages, firearms, and

other products the state prohibits prisoners from possessing or using.
A further alternative to halting distribution in
Florida or creating a separate edition for Florida would
be to remove the ads from Prison Legal News both in
Florida and outside of Florida. This would avoid the
cost of creating separate editions, but it also would result in the most grievous violation of First Amendment
rights. Other institutions where Prison Legal News is
distributed do not prohibit three-way calling services,
pen pal services, the purchase of products or services
with postage stamps, conducting a business or profession, or advertising those services to prisoners. Instead, they allow prisoners to engage in these activities
because they find the activities beneficial to the prisoners and society and consistent with penological objectives.
The third Turner factor also weighs against the
constitutionality of the challenged rule because, in the
absence of the rule, the distribution of Prison Legal
News would impose no additional burden on prison
guards’ resources. The Department already has rules
that require monitoring of all correspondence and
these rules will be unaffected if the rule at issue in this
case is invalidated. The primary impact of the invalidation of the rule will be to lighten the Department’s
load by making it unnecessary to determine whether
advertising of restricted services is non-incidental,
prominent, or prevalent throughout every publication
that is sent to prisoners.

Finally, as Judge Moore previously ruled, the
fourth factor of Turner weighs against the rule because
the state has readily available means of preventing
prisoners from using the restricted services without
preventing them from viewing advertising concerning
those services.

The Court should grant the certiorari petition and
direct the parties to address (1) whether the vagueness
of the challenged rule violates the First and Fourteenth Amendments and (2) whether the substance of
the challenged rule violates the applicable First and
Fourteenth Amendment standards.
Counsel of Record
600 Brickell Avenue,
Suite 3500
Miami, FL 33131
(305) 376-6007
Counsel for Amici Curiae
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