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Prison Legal News v. Secretary, Florida Dept. of Corrections Petition for Writ of Certiorari Appendix

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APPENDIX

TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the Eleventh Circuit, Prison Legal
News v. Secretary, Fla. Dep’t. of
Corrections, No. 15-14220 (May 17, 2018) .. App-1
Appendix B
Amended Order, United States District
Court for the Northern District of Florida,
Prison Legal News v. Jones, No.
4:12cv239-MW/CAS (Oct. 5, 2015) ............ App-48
Appendix C
Relevant Statutory Provision.................. App-112
Fla. Admin. Code R. 33-501.401(3) .. App-112

App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 15-14220
________________
PRISON LEGAL NEWS, A project of the Human Rights
Defense Center, a Not-for-Profit Washington
Charitable Corporation,

v.

Plaintiff-Appellee
Cross-Appellant,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellant
Cross-Appellee.
________________
Appeals from the United States District Court
for the Northern District of Florida
________________
Filed: May 17, 2018
________________
Before Ed Carnes, Chief Judge, Dubina, Circuit
Judge, and Conway,* District Judge
________________
OPINION
________________

* Honorable Anne C. Conway, United States District Judge for
the Middle District of Florida, sitting by designation.

App-2
Ed Carnes, Chief Judge:
From time to time we have all followed the advice
of Oscar Wilde and gotten rid of temptation by yielding
to it.1 Yielding to the temptation to commit an act that
the law forbids can lead to bad consequences,
including imprisonment. Prison officials have the duty
to reduce the temptation for prisoners to commit more
crimes and to curtail their access to the means of
committing them. The Constitution does place some
limits on the measures that corrections officials may
use to carry out that duty, which is what this case is
about.
The Florida Department of Corrections has rules
aimed at preventing fraud schemes and other criminal
activity originating from behind bars, but inmates
continually attempt to circumvent measures in place
to enforce those rules. The Department, for its part,
continually strives to limit sources of temptation and
the means that inmates can use to commit crimes. One
way it does that is by preventing inmates from
receiving publications with prominent or prevalent
advertisements for prohibited services, such as threeway calling and pen pal solicitation, that threaten
other inmates and the public. In the Department’s
experience, those ads not only tempt inmates to
violate the rules and commit crimes, but also enable
them to do so.
One publication the Department impounds based
on its ad content is plaintiff Prison Legal News
(PLN)’s monthly magazine, Prison Legal News. PLN
1 Oscar Wilde, The Picture of Dorian Gray 19 (Joseph Bristow
ed., Oxford Univ. Press 2006) (1890).

App-3
contends that the Department’s impoundments of its
magazine violate the First and Fourteenth
Amendments. After a bench trial, the district court
ruled that the impoundments do not violate the First
Amendment but the failure to give proper notice of
them does violate the Fourteenth Amendment. We
agree.
I.

Facts and Procedural History
A. Facts
1.

The
Florida
Corrections

Department

of

Florida law requires the Department of
Corrections to “protect the public through the
incarceration and supervision of offenders,” to protect
offenders “from victimization within the institution,”
and to rehabilitate offenders. Fla. Stat. § 20.315(1),
(1)(d). The Department strives to balance those
mandates of public safety, prison security, and
rehabilitation. That is no small task. It employs
16,700 officers to oversee 100,000 inmates in 123
facilities throughout Florida. Those officers enforce a
multitude of rules to ensure prison security and public
safety. See, e.g., Fla. Admin. Code rr. 33-602.101, .201,
.203 (rules governing inmate care, property, and
control of contraband).
To promote its rehabilitation mandate, the
Department grants inmates phone, pen pal, and
correspondence privileges so that they can stay in
touch with family and friends. Id. r. 33-210.101(9)
(allowing inmates to correspond with pen pals); id.
r. 33-602.201 app. 1 (authorizing inmates to keep up
to 40 stamps for correspondence); id. r. 33-602.205(1)
(granting telephone privileges). Those and similar

App-4
privileges pose problems in Florida prisons and
elsewhere. Inmates have the time, talent, and
tendency to use their phone, pen pal, and
correspondence privileges to conduct criminal activity,
thwarting efforts to protect inmates and the public.
The record is heavy with evidence of that unfortunate
reality.
James Upchurch, the Department’s Assistant
Secretary for Institutions and Re-entry, testified that
“[g]iven uncontrolled and unverifiable telephone
access, inmates have been found to use such
opportunities to harass the general public,
[D]epartment employees, their victims[,] and to search
for new victims.” He cited the example of incarcerated
Mexican mafia members in California who used a
network of prison phones to sell drugs and conduct
other illegal activity. Prison Legal News itself has
reported on instances of inmates abusing their phone
privileges. See News in Brief: Florida, Prison Legal
News, Nov. 2011, at 50 (reporting how an inmate
discovered that the county jail’s phone system
provided double refunds each time a call did not go
through, prompting the inmate to make calls and then
hang up until he had made the $1,250 he needed for
bail); Mark Wilson, Reach Out and Defraud Someone:
Oregon Jail Prisoners Commit Phone Scams, Prison
Legal News, Nov. 2010, at 24-25 (reporting on
inmates’ use of prison phones to conduct identity theft
scams, one of which resulted in the indictment of an
inmate on 35 counts of identity theft); News in Brief:
Florida, Prison Legal News, Sept. 2010, at 50

App-5
(reporting how a county inmate used the prison
phones to call in bomb threats).2
Like phone privileges, pen pal privileges may
open doors to criminal activity. Inmates abuse pen pal
privileges by soliciting kind-hearted but gullible
people and then defrauding them. Pen pal scams are
so common that the United States Postal Service
warns customers that pen pal ads have “proliferated
in recent years” and that “many ads placed by
prisoners are part of a sophisticated mail fraud
scheme that misuses postal money orders to bilk
consumers out of their hard earned savings.”3

PLN submitted into evidence every issue of Prison Legal News
from 2002 through 2014.
2

Prison Pen Pal Money Order Scam, U.S. Postal Inspection
Service,
http://www.postalinspectors.uspis.gov/investigations/
mailfraud/fraudschemes/othertypes/penpalfraud.aspx [https://
web.archive.org/web/20170204190103/postalinspectors.uspis.gov
/investigations/mailfraud/fraudschemes/othertypes/penpalfraud.
aspx]; see also Woods v. Comm’r of the Ind. Dep’t of Corr., 652
F.3d 745, 747 (7th Cir. 2011) (recounting that 350 inmates had
placed ads soliciting pen pals on websites, that “the majority of
these inmates had . . . misrepresented themselves to the public
in their postings on the sites,” and that several pen pals felt
deceived after “sending money to prisoners who had lied about
their release dates and offenses of conviction”); United States v.
Brown, 7 F.3d 1155, 1158 (5th Cir. 1993) (stating that a
Mississippi inmate scammed thousands of dollars out of a 65year-old Florida retiree he met through a “lonely hearts pen-pal
club”). [In keeping with Eleventh Circuit Internal Operating
Procedure 10, “Citation to Internet Materials in an Opinion,”
under Federal Rule of Appellate Procedure 36, a copy of the
internet materials cited in this opinion is available at this Court’s
Clerk’s Office.]
3

App-6
Inmates also abuse correspondence privileges.
For instance, one Florida inmate sent threatening
letters to a federal magistrate judge, one of which
informed the judge that someone would “stick a
curling iron up [the judge’s] twat and plug that sucker
in,” while another stated that the inmate was coming
to kill her. See United States v. Adamson, No.
4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23,
2007) (unpublished). Another way inmates abuse
correspondence privileges is by using their stamps as
a currency in the underground prison economy to buy
drugs, sexual favors, and anything else they can
bargain for. See United States v. Becker, 196 F. App’x
762, 763 & n.1 (11th Cir. 2006) (unpublished) (noting
how one inmate ran a prison gambling operation
where inmates paid him with stamps and another
inmate used stamps to pay for heroin); United States
v. Martin, 178 F. App’x 910, 911 (11th Cir. 2006)
(unpublished) (stating how an inmate used letters
with hidden compartments to smuggle heroin into the
prison, which he then gave to another inmate in
exchange for stamps). The problems associated with
stamps increase when inmates can send their stamps
to “cash-for-stamps” companies that will exchange the
stamps for cash at a percentage of the stamps’ face
value. Inmates can use the cash to purchase goods and
services outside prison walls, which facilitates
contraband smuggling and the corruption of prison
guards.
Recognizing that when inmates abuse their
privileges it threatens other inmates and the public,
the Department has sought to prevent that abuse.
First, it has prohibited three-way calling, which
includes any type of call transferring. Fla. Admin.

App-7
Code r. 33-602.205(2)(a). Three-way calling allows
inmates to circumvent the regulations the
Department has in place to stop them from using
prison phones to harass the public, arrange
contraband smuggling, and conduct other criminal
activity. The Department’s regulations restrict
inmates to calling no more than ten people on a preapproved list and require each outgoing call to begin
with an automated message informing the recipient
that the call is coming from a Department prison. Id.
r. 33-602.205(2)(a), (g). The Department also monitors
and records some inmate calls. Id. r. 33-602.205(1).
Second, the Department does not allow inmates to
“solicit or otherwise commercially advertise for money,
goods, or services,” which includes “advertising for
pen-pals” and “plac[ing] ads soliciting pen-pals” on
social media and inmate pen pal websites. Id. r. 33210.101(9). Third, inmates cannot use “postage
stamps as currency to pay for products or services.” Id.
r. 33-210.101(22). Fourth, inmates cannot conduct a
business while confined, which includes “any activity
in which the inmate engages with the objective of
generating revenue or profit while incarcerated.” Id. r.
33-602.207(1)-(2). That rule exists because inmate
businesses increase the risk of fraud and burden
Department staff with monitoring more mail and
phone activity. Id. r. 33-602.207(2).
Just as some inmates abuse their privileges, some
also evade or break the rules restricting their
privileges. For example, the Department’s telephone
security vendor can detect three-way call attempts by
the clicking noise that occurs when a call is
transferred, but inmates will blow into the receiver

App-8
when transferring a call to mask that clicking noise.
There are nearly 700,000 three-way call attempts each
year in Department prisons, leading officials to believe
that inmates would not make so many attempts if
some were not succeeding. Disciplinary reports
confirm that some attempts do succeed. Despite the
rule prohibiting pen pal solicitation, some inmates
manage to post profiles on pen pal solicitation
websites. Inmates also succeed in exchanging stamps
for cash––one cash-for-stamps company deposited
over $50,000 into inmates’ accounts over several
years. And as for the prohibition against conducting a
business, one inmate, a jailhouse lawyer known as
“H&R Block,” lived up to his nickname by running a
tax filing business where he would file tax returns on
behalf of other inmates. See News in Brief: Florida,
Prison Legal News, Apr. 2010, at 50. Of course, those
tax returns were false, and the inmate faced up to 90
years in prison for his scheme. Id.
2.

The
Department’s
Reading Material Rule

Admissible

Because some inmates abuse their privileges and
break the rules put in place to stop that abuse, the
Department takes additional steps to help increase
prison security and public safety. As Department
official Upchurch testified, protecting the public “goes
further than just . . . keeping the inmates inside the
fence and not allowing them to be out committing the
crimes that they commit.” Prison security challenges
evolve. Upchurch cited the availability of contraband
cell phones, which give inmates unregulated internet
access and have been used in other states to
orchestrate prison riots and arrange assaults on

App-9
prison staff. PLN’s expert acknowledged that
Department officials must be proactive in addressing
security problems. As Upchurch testified, “act[ing]
after the fact [in the prison business] risk[s] someone’s
life.”
One of the ways the Department tries to stay a
step ahead of inmates is to screen all incoming
publications for content that might enable them to
break prison rules. See Fla. Admin. Code r. 33501.401(3). Under the Department’s Admissible
Reading Material Rule, inmates can “receive and
possess publications . . . unless the publication is found
to be detrimental to the security, order or disciplinary
or rehabilitative interests of any institution of the
[D]epartment . . . or when it is determined that the
publication might facilitate criminal activity.” Id. For
example, to bolster the Department’s ban on inmates
possessing firearms or other dangerous weapons, id.
r. 33-602.203(2), the rule prohibits inmates from
receiving publications that “describe[ ] procedures for
the construction of or use of weapons,” id. r. 33501.401(3)(a).
The Admissible Reading Material Rule applies
that same logic to ads for prohibited services. A
publication is impounded if it contains ads for threeway calling services, pen pal solicitation services,
cash-for-stamps exchange services, or for conducting a
business, but only “where the advertisement is the
focus of, rather than being incidental to, the
publication[,] or the advertising is prominent or
prevalent throughout the publication.” Id. r. 33501.401(3)(l). The Department can also impound any
publication that “otherwise presents a threat to the

App-10
security, order or rehabilitative objectives of the
correctional system or the safety of any person.” Id. r.
33-501.401(3)(m). Once mailroom staff impound an
issue of a magazine for violation of the rules, it is
withheld from inmates until the Department’s
Literature Review Committee makes a final decision
about whether the issue does violate the Admissible
Reading Material Rule. Id. rr. 33-501.401(5), (8),
(14)(a).4 Mailroom staff cannot impound all issues of
an entire publication in advance; instead, they must
separately review and decide whether each issue of a
publication violates the Admissible Reading Material
Rule. Id. r. 33-501.401(5).5
3.

Prison Legal News and the First
Impoundments of It

Prison Legal News is a monthly magazine founded
in 1990 that reports on legal developments in the
criminal justice system and other topics that affect
The Admissible Reading Material Rule defines
“impoundment” as the action taken by mailroom staff “to
withhold an inmate’s incoming publication . . . pending review of
its admissibility by the Literature Review Committee.” Fla.
Admin. Code r. 33-501.401(2)(b). When the Committee upholds
an impoundment, that is a “rejection” and the issue is considered
contraband. Id. r. 33-501.401(2)(j). The difference between an
impoundment and rejection is immaterial here, so we use the
term “impound” to refer to the Department’s decision to withhold
a particular issue from an inmate subscriber.
4

For example, if the Department decides that the January
issue of Prison Legal News violates the Admissible Reading
Material Rule, then it impounds that issue. Fla. Admin. Code r.
33-501.401(8). But when the February issue arrives, mailroom
staff must review that latest issue to determine whether it
complies with the rule. Id. r. 33-501.401(5).
5

App-11
inmates. About 70% of the magazine’s 7,000
nationwide subscribers are inmates. It has
subscribers in all 50 state prison systems and the
Federal Bureau of Prisons. Only about 70, or one
percent of the 7,000 subscribers, are Florida inmates.
Prison Legal News began carrying advertisements in
1996 to cover its publication costs. Not surprisingly,
the ads are placed by companies whose target
audience is prisoners. Two examples are law firms
specializing in prisoner litigation and schools offering
inmate correspondence courses. Nothing wrong with
that.
In 2003 the Department began impounding some
Prison Legal News issues based on ad content. The
problem ads included ones for pen pal solicitation,
cash-for-stamps exchange services, and three-way
calling services. The ads for pen pal solicitation offered
inmates the opportunity to post on the company’s
website a profile with a photo and address, and the
public could search for that profile by the inmate’s age,
race, and other features. The cash-for-stamps ads gave
inmates the opportunity to exchange stamps for cash
at a percentage of the stamps’ face value. The threeway calling ads offered discount phone services on
collect calls from inmates. The Department
determined that those phone services fell under its
broad definition of “three way calling” because the
companies forwarded or transferred the inmates’
collect calls to the call recipient’s home phone, cell
phone, or blocked home phone number.6 The
6 PLN asserts that Prison Legal News has never run ads for
three-way calling, but its brief and one of its trial exhibits
contradict that assertion. It acknowledges that its magazine

App-12
Department determined that all three types of ads
violated Rule (3)(l), but it was especially concerned
with the ads for three-way calling because it believed
that its telephone security vendor could not trace
inmate calls made through the discount phone
services.
PLN sued the Department in 2004 to stop the
impoundments. After the Department’s telephone
vendor gave assurances that it could block three-way
call attempts, the Department agreed in 2005 not to
impound Prison Legal News as long as all the
problematic ads were incidental to the overall
publication. Because the Department began allowing
inmate subscribers to receive Prison Legal News we
rejected PLN’s argument that an injunction was
necessary to stop the impoundments, and we affirmed
the district court’s grant of judgment as a matter of
law to the Department. See Prison Legal News v.
McDonough, 200 F. App’x 873, 876-78 (11th Cir. 2006)
(unpublished).

contains ads for discount phone services that allow subscribers to
avoid long distance charges by assigning the inmate a local
number to call, and then transferring that call to the final call
recipient (so if a Miami inmate wants to call his mother in
Kansas, the Miami inmate can call a Miami number and the call
is then transferred to Kansas). That type of call service falls
under the Department’s definition of three-way calling. See Fla.
Admin. Code r. 33-602.205(2)(a) (“Inmates shall not make threeway telephone calls nor make calls to numbers on the list which
are then transferred to other telephone numbers.”). And PLN’s
trial exhibit shows that almost every issue of Prison Legal News
from January 2002 to December 2014 included ads for the
prohibited services. One of the columns in that exhibit is labeled
“3-Way Calls.”

App-13
4.

The
Department’s
Renewed
Impoundments of Prison Legal News

That peace was short-lived. Several changes after
2005 undermined the truce and led to the current
conflict. For one thing, the number and size of ruledefying ads increased after 2005, resulting in their
becoming less incidental and more prominent.7 As the
ads became more prominent, Department officials
noticed an increase in the number of inmates sending
stamps to cash-for-stamps companies. They also
became concerned about a phone technology called
Voice over Internet Protocol, which makes it harder to
detect three-way call attempts by transferring calls
over the internet with no noise. That technology had
not been an issue in 2005, but in the following years it
became more widespread and more of a problem.
New types of ads offering “prisoner concierge” and
“people locator” services also began to appear in Prison
Legal News after 2005. Prisoner concierge companies
offer inmates a variety of administrative and financial
Although the percentage of the magazine containing ads
prohibited by Rule (3)(l) increased only from an average of 9.21%
in 2005 to 9.80% in 2009, those naked percentages don’t tell the
whole story because the number of full-page and half-page ads
increased. The magazine also grew from 48 pages in 2005 to 64
pages in 2014, which allowed PLN to include more problematic
ads without changing the proportion of the magazine devoted to
such ads.
7

More importantly, the record does not stop at 2009. PLN’s own
exhibit shows that the percentage of problematic ads increased
from 9.80% in 2009 to 15.07% in 2014, the last year of the
impoundments that are covered in the record. That is an increase
of more than 50% in the percentage of problematic ads in the
most recent five-year period for which there is data.

App-14
services. One such company, Prisoner Assistant, ran
ads offering inmates “access to hundreds of
professional services that have never before been
available to prisoners,” including money orders, online
fund transfers, internet purchases and research,
website development, cell phone contracts, and Green
Dot cards (prepaid debit cards that can be reloaded
and used to send money). That company even provides
inmates with an “Executive Assistant to manage [the
inmate’s] file and provide personal attention to [the
inmate’s] requests,” and claimed in its ad that “[i]f it
can be done, we will try to do it.” According to the
Department, prisoner concierge companies threaten
prison security and public safety by, among other
things, making it easier for inmates to create an
alternate identity that conceals their inmate status
from people on the outside, enabling them to violate
prison rules and commit crimes.
People locator companies are just that. One such
company placed ads claiming that it can find “just
about anyone” including “hard to find people [and]
unlisted numbers and address[es].” That company has
a database of 1.2 billion records and provides inmates
with a person’s date of birth, email address, any
unlisted telephone numbers, and social security
number. With reason, the Department fears that
inmates will use people locator services to perpetrate
scams or allow inmates to find and harm judges,
jurors, witnesses, or anyone else the inmate may want
to harass or harm.
All of those developments between 2005 and
2009—the increasing number and size of the ruledefying ads, the growth of internet-based phone

App-15
technology, and the appearance of prisoner concierge
and people locator ads—led the Department to begin
impounding Prison Legal News again in September
2009.8 The Department decided that the ads for threeway calling services, pen pal solicitation services, and
cash-for-stamps exchange services violated Rule (3)(l).
It also determined that the ads for prisoner concierge
and people locator services violated Rule (3)(m), the
provision prohibiting any publication that “presents a
threat to the security, order or rehabilitative
objectives of the correctional system or the safety of
any person.” Id. r. 33-501.401(3)(m). The Department
impounds other publications that violate those rules,
The Department amended Rule (3)(l) in June 2009. The
earlier version provided that a publication would not be
impounded as long as the ads were “merely incidental to, rather
than being the focus of, the publication.” The amendment
provided that a magazine could also be impounded if the ruledefying ad was “prominent or prevalent throughout the
publication.” PLN contended at trial that the Department
amended the rule to keep Prison Legal News out of Florida
prisons, but the district court rejected that contention as
conjecture and found that the Department amended Rule (3)(l) to
make it clearer and to address its new security concerns. PLN
makes only a cursory attempt to raise that contention here,
offering no supporting authority, which means that it is
abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim when he . . . raises it in a perfunctory manner
without supporting arguments and authority.”). Its assertion
that the “prominent or prevalent” language is too vague is not
properly before us because the district court denied PLN’s motion
to amend its complaint to include a void-for-vagueness claim, and
PLN did not appeal that ruling. See Singleton v. Wulff, 428 U.S.
106, 120, 96 S. Ct. 2868, 2877 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an issue
not passed upon below.”).
8

App-16
but it is the only corrections department in the country
that impounds Prison Legal News based on its ad
content.
5.

The
Department’s
Failure
Provide Notice to PLN

to

At the time of trial in January 2015, the
Department had impounded every issue of Prison
Legal News since September 2009, a total of 64 issues
(the magazine has 12 issues per year). The Admissible
Reading Material Rule requires the Department to
send to all publishers a notice form listing the “specific
reasons” for an impoundment. Fla. Admin. Code r. 33501.401(8)(b). Despite that rule, the Department did
not send PLN a notice form for 26 out of the 62
monthly issues it impounded between November 2009
and December 2014, which means that PLN did not
receive a notice form for 42% of the issues impounded
during that time span. That number rises to 87% when
defective notice forms that did not list the reasons for
the impoundment are considered.
When PLN did receive a notice form for an
impounded issue, it appealed the impoundment
decision to the Department’s Literature Review
Committee, which makes the final decision whether
an issue violates the Admissible Reading Material
Rule. See id. rr. 33-501.401(14)(a), (15)(a). Those
appeals were unsuccessful, so PLN sued the
Department in November 2011 to stop the
impoundments.
B. Procedural History
PLN brought two claims under 42 U.S.C. § 1983
against the Department Secretary in her official
capacity. First, it claimed that Rules (3)(l) and (3)(m),

App-17
as applied to Prison Legal News, violate the First
Amendment. Second, it claimed that the Department’s
failure to provide PLN with proper notice for each
impounded monthly issue violated its right to
procedural due process under the Fourteenth
Amendment. PLN sought declaratory and injunctive
relief against the Department.
After a bench trial, the district court ruled against
PLN on the First Amendment claim and for it on the
Fourteenth Amendment claim. The court entered an
injunction requiring the Department to provide PLN
with notice each time it impounded a monthly issue of
the magazine and the reason for the impoundment.
The Department appeals the court’s judgment that it
violated PLN’s due process rights. PLN cross-appeals
the court’s judgment that the impoundments of Prison
Legal News do not violate the First Amendment.9
II. Standards of Review
After a bench trial, we review de novo the district
court’s legal conclusions and we review its fact
findings for clear error. Proudfoot Consulting Co. v.
Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “We
PLN also publishes a book called the Prisoner’s Guerilla
Handbook and sends information packets about its publications
to inmates. The Department impounded those publications, and
PLN claimed in its amended complaint that impounding them
also violated its First and Fourteenth Amendment rights. (PLN
claimed that the impoundment of all of its publications violated
its constitutional rights; its amended complaint did not contain
separate claims for each publication.). Although PLN’s brief
refers to its “publications,” it mentions the handbook and
information packets by name only once in its 82-page initial brief.
As a result, PLN has abandoned any separate challenge to those
publications. See Sapuppo, 739 F.3d at 681.
9

App-18
review the decision to grant an injunction and the
scope of the injunction for abuse of discretion.” Angel
Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d
1200, 1208 (11th Cir. 2008).
III. Discussion
A. First Amendment Claim
PLN
contends
that
the
Department’s
impoundments of Prison Legal News violate its First
Amendment right of access to its inmate subscribers.
The parties agree that the deferential standard
established by the Supreme Court in Turner v. Safley,
482 U.S. 78, 107 S. Ct. 2254 (1987), governs PLN’s
First Amendment challenge to the impoundments.
PLN has received a helping hand from sixteen law
professors acting as amici curiae who claim an
“interest in seeing that First Amendment doctrine
develops in a way that promotes rather than censors
free speech.” Br. of Amici Curiae at 1. The amici
contend that we should give prison management
decisions decreased deference under the Turner
standard in light of the Supreme Court’s recent First
Amendment decisions, mostly in other contexts.
On the First Amendment issue we begin by
explaining the Turner standard, which requires
deference to prison officials’ decisions. We then
address the amici’s argument for diminished
deference. And then we will discuss the application of
the First Amendment to the impoundments.
1.

The Turner Standard

“Prison walls do not form a barrier separating
prison inmates from the protections of the
Constitution.” Turner, 482 U.S. at 84, 107 S. Ct. at

App-19
2259. Inmates retain some constitutional rights in
prison, id., and publishers like PLN have a First
Amendment right of access to their inmate
subscribers, Thornburgh v. Abbott, 490 U.S. 401, 408,
109 S. Ct. 1874, 1879 (1989).
But that right is limited. See Lawson v.
Singletary, 85 F.3d 502, 509 (11th Cir. 1996) (noting
the “more limited nature of . . . First Amendment
rights” in the penal context). “Running a prison is an
inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources,
all of which are peculiarly within the province of the
legislative and executive branches of government.”
Turner, 482 U.S. at 84-85, 107 S. Ct. at 2259. Those
branches are responsible for prison administration,
which means that “separation of powers concerns
counsel a policy of judicial restraint” and deference to
prison officials’ management decisions. Id. at 85, 107
S. Ct. at 2259. And “[w]here a state penal system is
involved, federal courts have . . . additional reason to
accord deference to the appropriate prison
authorities.” Id. To balance judicial deference with
“the need to protect constitutional rights,” the Turner
Court held that a prison regulation affecting
constitutional rights is valid as long as “it is
reasonably related to legitimate penological
interests.” Id. at 85, 89, 107 S. Ct. at 2259, 2261. The
Department and PLN agree that the Turner standard
controls here.
The Department must show “more than a
formalistic
logical
connection
between
[the
impoundments of Prison Legal News] and a
penological objective.” Beard v. Banks, 548 U.S. 521,

App-20
535, 126 S. Ct. 2572, 2581 (2006) (plurality opinion).
But that does not mean that this Court sits as a superwarden to second-guess the decisions of the real
wardens. See Turner, 482 U.S. at 89, 107 S. Ct. at 2262
(rejecting the view that courts should be the “primary
arbiters of what constitutes the best solution to every
administrative problem”). Instead, 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.” Al-Amin v. Smith, 511 F.3d
1317, 1328 (11th Cir. 2008) (quotation marks omitted);
see also Pope v. Hightower, 101 F.3d 1382, 1384 n.2
(11th Cir. 1996) (“Federal courts must scrupulously
respect the limits on their role by not thrusting
themselves into prison administration; prison
administrators must be permitted to exercise wide
discretion within the bounds of constitutional
requirements.”). The Supreme Court has reaffirmed
that point time and time again. See, e.g., Overton v.
Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 2167
(2003) (“We must accord substantial deference to the
professional judgment of prison administrators, who
bear a significant responsibility for defining the
legitimate goals of a corrections system and for
determining the most appropriate means to
accomplish them.”); Shaw v. Murphy, 532 U.S. 223,
229, 121 S. Ct. 1475, 1479 (2001) (“[W]e generally have
deferred to the judgments of prison officials in
upholding [prison] regulations against constitutional
challenge.”); Thornburgh, 490 U.S. at 408, 109 S. Ct.
at 1879 (“[T]his Court has afforded considerable

App-21
deference to the determinations of prison
administrators who, in the interest of security,
regulate the relations between prisoners and the
outside world.”).
2.

The Amici’s Diminished Deference
Argument

In spite of all of those Supreme Court decisions
requiring us to grant substantial deference to the
decisions of prison officials, the amici argue that we
should not. Claiming clairvoyance, they predict the
Supreme Court will overrule its precedents, and they
urge us to go ahead and effectively do that ourselves.
See Br. of Amici Curiae at 2 (“Modern First
Amendment jurisprudence trends toward more
protections for speech rights, a direction that should
inform this Court’s analysis.”). The amici discern a
trend from several recent Supreme Court decisions,
nearly all of which have nothing to do with Turner or
challenges to prison regulations, to argue that
increased protection of free speech requires decreased
deference under Turner. See, e.g., United States v.
Alvarez, 567 U.S. 709, 713-15, 729-30, 132 S. Ct. 2537,
2542-43, 2551 (2012) (holding that the Stolen Valor
Act violated the First Amendment); Brown v. Entm’t
Merchs. Ass’n, 564 U.S. 786, 805, 131 S. Ct. 2729,
2741-42 (2011) (striking down on First Amendment
grounds a statute that prohibited the sale of violent
video games to minors); Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 365, 130 S. Ct. 876,
913 (2010) (holding that the government “may not
suppress political speech on the basis of the speaker’s
corporate identity”). In any event, our duty is to follow

App-22
Supreme Court decisions, not to use them to map
trends and plot trajectories.
The only Court that can properly cut back on
Supreme Court decisions is the Supreme Court itself.
See Hohn v. United States, 524 U.S. 236, 252-53, 118
S. Ct. 1969, 1978 (1998) (“Our decisions remain
binding precedent until we see fit to reconsider them,
regardless of whether subsequent cases have raised
doubts about their continuing vitality.”); State Oil Co.
v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997) (“[I]t
is this Court’s prerogative alone to overrule one of its
precedents.”); Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 192122 (1989) (“If a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its
own decisions.”); Evans v. Sec’y, Fla. Dep’t of Corr., 699
F.3d 1249, 1263 (11th Cir. 2012) (“The Court has told
us, over and over again, to follow any of its decisions
that directly applies in a case, even if the reasoning of
that decision appears to have been rejected in later
decisions.”).
Even if it were otherwise, only one of the postTurner decisions that amici cite even mentions
Turner, and that decision actually confirms that we
owe deference to the decisions of wardens and other
prison officials. See Beard, 548 U.S. at 524-25, 535,
126 S. Ct. at 2575-76, 2581-82 (plurality opinion)
(rejecting a First Amendment challenge to a prison
rule and stating that the court of appeals erred by
offering “no apparent deference to the deputy prison

App-23
superintendent’s professional judgment”);10 see also
Davila v. Gladden, 777 F.3d 1198, 1212-13 (11th Cir.
2015) (addressing the Turner standard without any
hint that it should be applied with decreased deference
in light of recent Supreme Court decisions).
The Beard decision confirms that whatever the
Supreme Court has done in other First Amendment
cases, it has not adopted a damn-the-deference, fullspeed-ahead approach to First Amendment rights
within prison walls. As a result, we categorically reject
the amici’s argument that we should leap-frog ahead
of the Supreme Court in this area. We follow Supreme

Justice Thomas, joined by Justice Scalia, concurred in the
judgment and agreed with the plurality that “[j]udicial scrutiny
of prison regulations is an endeavor fraught with peril.” Beard,
548 U.S. at 536, 126 S. Ct. at 2582 (Thomas, J., concurring). The
amici attempt to distinguish Beard, which involved a challenge
to a prison policy designed to motivate better behavior by barring
certain inmates from receiving publications. Id. at 524-25, 126 S.
Ct. at 2575-76 (plurality opinion). They argue that the Beard case
was exceptional because it involved maximum security inmates
and that the prison’s regulations were motivated by its
rehabilitative goals. Neither of those distinctions matter. What
matters is that the Beard Court did not water down Turner. Id.
at 528-33, 126 S. Ct. at 2577-80 (plurality opinion). The amici’s
argument that the prison policy at issue in Beard still allowed
inmates to receive legal correspondence, id. at 526, 126 S. Ct. at
2576 (plurality opinion), and that Prison Legal News is a form of
legal correspondence fails on its essential premise because it is
not. We agree with the definition in the Florida Administrative
Code that legal mail is “mail to and from” courts, attorneys,
public defenders, legal aid organizations, agency clerks, and
government attorneys. Fla. Admin. Code r. 33.210.102(1)-(2).
10

App-24
Court decisions, here as elsewhere, instead of plotting
ways around them.11
With the proper level of deference in mind, we will
turn now to applying the Turner standard to
determine whether the impoundments of Prison Legal
News under its Rules (3)(l) and (3)(m) violate the First
Amendment.
3.

Application of the Turner Standard

The Turner standard requires the Department to
show that its impoundments of Prison Legal News are
content neutral, Thornburgh, 490 U.S. at 415, 109 S.
Ct. at 1882, and “reasonably related to legitimate
penological interests,” Turner, 482 U.S. at 89, 107 S.
Ct. at 2261. The impoundments are content neutral
because they are based “solely on . . . [the magazine’s]
potential
implications
for
prison
security.”
Thornburgh, 490 U.S. at 415-16, 109 S. Ct. at 1883.
And PLN does not dispute that the Department’s
asserted interests for the impoundments—prison
security and public safety—are legitimate. See Perry
v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1366 (11th
Cir. 2011) (“[P]rotecting the public and ensuring
internal prison security are legitimate penological
objectives.”). Those interests are not only legitimate,
but paramount. See Thornburgh, 490 U.S. at 415, 109
S. Ct. at 1882 (“[P]rotecting prison security . . . is
central to all other corrections goals.”) (quotation
marks omitted).
11 While we categorically reject the contention and supporting
arguments of the amici, we do not mean to be unfair. The
professors’ brief does have good grammar, sound syntax, and
correct citation form.

App-25
That leaves the issue of whether the
Department’s impoundments of Prison Legal News are
“reasonably related” to prison security and public
safety. Turner, 482 U.S. at 89, 107 S. Ct. at 2261. The
Turner Court established four factors to determine the
reasonableness of prison regulations: (1) whether
there is a “valid, rational connection between the
prison regulation and the legitimate governmental
interest put forward to justify it”; (2) whether the
publisher has alternative means to exercise its right
of access to its inmate subscribers; (3) what “impact
accommodation of the asserted constitutional right
will have on guards and other inmates, and on the
allocation of prison resources generally”; and (4)
whether PLN “can point to . . . alternative[s] that fully
accommodate[ ] [its] rights at de minimis cost to valid
penological interests.” Id. at 89-91, 107 S. Ct. at 2262
(quotation marks omitted).
PLN
contends
that
the
Department’s
impoundments of Prison Legal News under Rules 3(l)
and 3(m) fail all four factors and therefore amount to
unconstitutional censorship. We disagree.
a. The First Turner Factor: The
Existence
of
a
Rational
Connection
The first Turner factor requires the Department
to show that there is a “rational connection” between
its decision to impound Prison Legal News and its
interests in prison security and public safety. Id. at 89,
107 S. Ct. at 2262. The Department’s position is that
limiting inmates’ exposure to the ads in Prison Legal
News will reduce the risk that inmates will engage in
behavior that endangers other inmates, guards, and

App-26
the public. PLN’s position is that there is no rational
connection because there is no evidence that ads in its
magazine have ever caused a security breach. PLN’s
argument demands too much.
The Turner standard does not require the
Department to present evidence of an actual security
breach to satisfy the first factor. Instead, the Supreme
Court recognized that prison officials must be able to
“anticipate security problems and . . . adopt innovative
solutions” to those problems to manage a prison
effectively. Id. (emphasis added). We have rejected the
“misconception” that prison officials are “required to
adduce specific evidence of a causal link between [a
prison policy] and actual incidents of violence (or some
other actual threat to security).” Lawson, 85 F.3d at
513 n.15. “Requiring proof of such a correlation
constitutes insufficient deference to the judgment of
the prison authorities with respect to security needs.”
Id. Other circuits agree. See, e.g., Simpson v. County
of Cape Girardeau, 879 F.3d 273, 280 (8th Cir. 2018)
(“Cape Girardeau may seek to prevent harm that has
yet to occur and, as a result, is not required to provide
evidence of previous incidents of contraband reaching
inmates through the mail in order to adopt a postcardonly incoming mail regulation.”); Murchison v. Rogers,
779 F.3d 882, 890 (8th Cir. 2015) (stating that Turner
“does not require actual proof that a legitimate
interest will be furthered by the challenged policy” and
that “evidence short of an actual incident satisfies” the
first factor) (quotation marks omitted); Singer v.
Raemisch, 593 F.3d 529, 536 (7th Cir. 2010) (“The
question is not whether [a game banned by the prison]
has led to gang behavior in the past; the prison
officials concede that it has not. The question is

App-27
whether the prison officials are rational in their belief
that, if left unchecked, [the game] could lead to gang
behavior among inmates and undermine prison
security in the future.”); Cal. First Amend. Coal. v.
Woodford, 299 F.3d 868, 882 (9th Cir. 2002) (stating
that prison officials “must at a minimum supply some
evidence that . . . potential problems are real, not
imagined,” but affirming that “prison officials may
pass regulations in anticipation of security problems”).
In Perry, a case involving a First Amendment
challenge to a Department regulation prohibiting pen
pal solicitation, we did not require that prison officials
produce evidence of a past incident to satisfy the first
Turner factor. See Perry, 664 F.3d at 1362, 1366. We
held that the Department had established a rational
connection between that regulation and its security
and safety interests through the testimony of James
Upchurch, id. at 1366, the same prison official the
Department relied on in the present case. He testified
in Perry that “when inmates only receive pen pals
through personal associates and not pen pal
companies . . . the possibility of the inmate defrauding
the pen pal is greatly reduced.” Id. (emphasis added).
We did not demand any evidence that inmates’
solicitation of pen pals had previously caused a
security breach. Id.
There is plenty of evidence that preventing
inmates from viewing prominent or prevalent ads for
prohibited services will reduce the possibility that
they will use those services.12 The ads not only make
12 PLN asserts that the Department is judicially estopped from
arguing that the problematic ads present a security threat
because the Department allegedly took the position in the earlier

App-28
the prohibited services available to inmates but also
appear along with articles about inmate phone scams,
the role of Green Dot cards in prison gang extortion
schemes, and the nationwide problem with smuggling
contraband like drugs and cell phones into prisons. An
inmate reading Prison Legal News not only reads
articles about inmates putting the prohibited services
to dangerous use, but also sees ads that enable him to
obtain those same prohibited services. As PLN’s
expert acknowledged, “[j]ust because there [are]
litigation that the same types of ads do not present such a threat.
See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.
2010) (“[J]udicial estoppel is designed to prevent a party from
asserting a claim in a legal proceeding that is [clearly]
inconsistent with a claim taken by the party in a previous
preceding.”) (quotation marks omitted). Not so. PLN’s current
position is not clearly inconsistent with its earlier position
because the Department never represented that the ads present
no security threat. Instead, its position was that the problematic
ads were not a security threat as long as they remained
incidental in terms of their size and number. See McDonough,
200 F. App’x at 878 (stating that we did not expect the
Department to “resume the practice of impounding publications
based on incidental advertisements”) (emphasis added). But after
2005 the ads became more prominent (the size and number of the
ads increased), ads for prisoner concierge and people locator
services appeared, and phone technology changed. In view of
those changes, the Department’s decision to renew impoundment
was not an attempt to “play[ ] fast and loose with [this Court] to
suit the exigencies of self interest.” In re Coastal Plains, Inc., 179
F.3d 197, 205 (5th Cir. 1999) (quotation marks omitted). As a
result, the district court did not abuse its discretion in rejecting
PLN’s judicial estoppel argument. And because judicial estoppel
does not apply here, we need not decide the extent to which it can
be applied against a state if at all. See Heckler v. Cmty. Health
Servs. of Crawford Cty., Inc., 467 U.S. 51, 60-61, 104 S. Ct. 2218,
2224 (1984) (noting the uncertainty on that point).

App-29
rule[s] [prohibiting use of those services] is no
guarantee that everybody will abide by the rule[s].”
See Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct.
3194, 3200 (1984) (“Inmates have necessarily shown a
lapse in ability to control and conform their behavior
to the legitimate standards of society by the normal
impulses of self-restraint; they have shown an
inability to regulate their conduct in a way that
reflects either a respect for law or an appreciation of
the rights of others.”). Given that common-sense
proposition, it’s no surprise that Upchurch, the
Department’s expert, agreed with the district court’s
statement that the ads “create the possibility, [the]
real possibility” of inmates doing an end run around
prison rules. He explained how that possibility exists
for each type of ad at issue in this case: (1) three-way
calling ads, (2) pen pal solicitation ads, (3) cash-forstamps exchange ads, and (4) prisoner concierge and
people locator ads.13
i. Three-Way Calling Ads
The Department is concerned with ads for threeway calling because that service undermines its
ability to determine a call recipient’s identity and
location. For instance, the December 2009 issue of
Rule (3)(l) allows the Department to impound publications
that contain prominent or prevalent ads for “[c]onducting a
business or profession while incarcerated.” Fla. Admin. Code
r. 33-501.401(3)(l). PLN asserts that the district court failed to
analyze the rational connection between an ad for that kind of
service and the Department’s penological interests, but neither
party discusses those particular ads in its briefs. In any event,
Upchurch testified that all the ads create the possibility that
inmates will circumvent prison rules, which is enough to
establish a rational connection. See Perry, 664 F.3d at 1366.
13

App-30
Prison Legal News featured an ad from a company
that allowed inmates to make a call to a local number,
which could then be forwarded to up to three different
numbers. Those types of three-way calling services,
combined with the growth of internet-based phone
technology, make it easier for inmates to call people
outside their approved list. Although two phone
companies that advertise in Prison Legal News
provide the Department’s telephone vendor with the
final call recipient’s number and address, other
companies that advertise in the magazine have not
done so. Given that Department inmates make
700,000 three-way call attempts each year—and some
of those attempts succeed—the Department’s effort to
reduce that number by curtailing inmates’ exposure to
ads for that service is rational. See Prison Legal News
v. Livingston, 683 F.3d 201, 218 (5th Cir. 2012)
(holding that it was reasonable for prison officials to
conclude that removing a book “describing racial
tensions in the prison context—as opposed to racial
tensions more generally—” would make prison
violence less likely).
PLN argues that the Department’s fears about
three-way calling ads are overblown. It points out that
the Department allows inmates to call cell phones,
even though cell phones present just as much of a
security threat as three-way calling because the
Department cannot identify a cell phone call
recipient’s location. (Identifying a call recipient’s
location helps the Department detect and stop
criminal activity conducted over the phones.).
According to PLN, that alleged loophole undermines
the rational connection. See Woodford, 299 F.3d at 881
(noting that a prison policy involved in that case

App-31
contained
“loopholes
that
undermine[d]
its
rationality”). But the Department explained why it
allows inmates to call cell phones despite the security
problems they present. Given the decline in landline
use, prohibiting inmates from calling cell phones
would curtail their ability to keep in touch with family
and friends, which can be critical for rehabilitation.
The Department also has several rules addressing the
unique security problems that cell phones create: the
cell phone must be contracted through a company
licensed
with
the
Federal
Communications
Commission; calls to pre-paid or pay-as-you-go phones
are prohibited; and the cell phone owner must provide
a physical billing address. See Fla. Admin. Code r. 33602.205(2)(a). Because the Department has good
reason for not banning all calls to cell phones, while
also limiting three-way calls, PLN’s argument that the
restriction on ads for three-way calls has no rational
connection to security and safety interests is
unpersuasive.
ii. Pen Pal Solicitation Ads
Upchurch’s
testimony
shows
why
the
Department’s concerns with pen pal solicitation ads
are rationally connected to its security and safety
interests. He described how those services give
inmates opportunities to prey on the public by
allowing them to write people they have no connection
with, which heightens the risk of fraud. In his
experience, giving inmates the opportunity to solicit
pen pals resulted in the exploitation of kind-hearted
but gullible people. Inmates have been known to
borrow or buy from each other pen pal letters that
have proven effective in scamming victims. Upchurch

App-32
explained that such scams are hard to investigate
because victims are often embarrassed and
prosecutors prefer to focus on criminals on the streets,
not those already in prison. And despite the
Department’s rule prohibiting pen pal solicitation,
inmates succeed in posting online profiles with the
same companies that advertise in Prison Legal News.
Given that evidence, the Department’s belief that
reducing inmates’ exposure to the ads will help ensure
compliance with the prohibition on pen pal solicitation
is rational.
iii. Cash-for-Stamps Ads
Turning to cash-for-stamps ads, Upchurch
testified that the large number and size of those ads
in Prison Legal News makes inmates “aware of the
opportunity [to break prison rules] where they
otherwise might not be.” That is enough to establish a
rational connection between the ads and the
Department’s penological interests. See McCorkle v.
Johnson, 881 F.2d 993, 995-96 (11th Cir. 1989)
(upholding a prison’s ban on a satanic bible based on
prison officials’ testimony that allowing access to it
would “only encourage” violent behavior because of the
book’s teachings about revenge and disobedience).
Upchurch also testified that the large number of cashfor-stamps ads in each issue of Prison Legal News
shows that the companies are making money off their
ads, which evidences that the ads are causing inmates
to use those services.14 The record supports his
14 PLN argues that if the Department is worried about the
security problems stamps present, then it should just prohibit
inmates from keeping stamps altogether instead of allowing
them to keep up to 40 stamps at a time. But the Department

App-33
suspicion, because it shows that over a period of
several years a cash-for-stamps exchange company
deposited more than $50,000 into the accounts of
Florida inmates.
iv. Prisoner
Concierge
People Locator Ads

and

Finally, Upchurch testified about why ads for
prisoner concierge and people locator services
threaten prison security and public safety. The
problem with prisoner concierge companies is that
their services allow inmates to conceal their true
identities from the public. Upchurch recounted how
some prisoner concierge companies offer photo editing
services, which an inmate could use to transform an
official prison photo depicting him in a prison uniform
into a fake vacation photo depicting him in a bathing
suit at the beach. The inmate could then use that fake
photo to misrepresent himself to the public, which
facilitates fraud. In that and other ways, those ads
undermine the Department’s ability to control
inmates’ contact with the public.
The case against ads for people locator services is
even more obvious. As Upchurch put it, inmates could
use people locator services to “locate judges, lawyers,
prosecutors, former witnesses, families of victims,” or
explained that it allows inmates to keep some stamps so that they
can mail letters to family and friends, and switching to a
stampless system would be costly and impractical. The
Department does inspect all outgoing mail, but stamps are easily
hidden and the Department processes 50,000 pieces of mail each
day. Allowing inmates to have stamps for the legitimate purpose
of sending mail to family and friends, while banning ads that
tempt them to use stamps for illegitimate purposes, is rational.

App-34
anyone else “they would have an axe to grind with.”
He cited the example of a Department inmate who
threatened a judge, as well as the example of a prison
gang member who after he was released murdered the
chief of the Colorado Department of Corrections. As
the district court aptly noted, “it doesn’t require a JD,
or a federal judgeship” to see why people locator
services pose a threat.
v. The “Focus of” or “Prominent
or Prevalent” Requirement
It is true that Rule (3)(l) prohibits only those
publications where the ruledefying ads are either the
“focus of” the publication or are “prominent or
prevalent” throughout it. Fla. Admin. Code r. 33501.401(3)(l). PLN asserts that if the ads are as
dangerous as the Department makes them out to be,
then the Department should impound a publication
with even one suspect ad, which it could do. See
Thornburgh, 490 U.S. at 404-05 & n.5, 418-19, 109 S.
Ct. at 1877 & n.5, 1884-85 (upholding the facial
validity of a prison regulation that allowed a warden
to reject a publication based on a single prohibited
feature). Upchurch testified that the Department
adopted the “prominent or prevalent” standard to
“moderate[ ]” the “focus of” requirement in Rule 3(l)
and provide “some leeway” to Prison Legal News and
other publications with questionable ads.15 It did so
even though that more moderate approach amounted
to “giv[ing] in on some security concerns.” PLN has not
convinced us that moderation in pursuit of safety is a
15 Except, for example, publications containing even a single
depiction of, or description about, how to manufacture drugs or
construct a weapon. See Fla. Admin. Code r. 33- 501.401(3)(a), (c).

App-35
constitutional vice. We do not condemn the
Department for permitting more expression than it
was required to.16
vi. Summary of the First Turner
Factor
The record shows that the Department’s decision
to limit inmates’ exposure to the ads is not “so remote”
from the Department’s security and safety interests
“as to render the . . . [impoundments] arbitrary or
irrational.” Pope, 101 F.3d at 1385. It’s not remote at
all. There is a rational connection between its
impoundments of Prison Legal News based on the
magazine’s ad content and prison security and public
safety interests.
b.

The Second Turner
Alternative Means

Factor:

The second Turner factor is “whether there are
alternative means” available to PLN to exercise its
right of access to its inmate subscribers. See Turner,
482 U.S. at 90, 107 S. Ct. at 2262. PLN contends that
this factor weighs in its favor because the district court
found that PLN could not afford to publish its
magazine without advertising revenue, and
publishing a separate Florida-only version without the
rule-defying ads would be cost prohibitive. With those
options off the table, PLN argues, the impoundments
amount to a blanket ban on its magazine because it
PLN, inconsistently, also argues that the Department cannot
prohibit a large amount of protected speech based on a few
suspect ads. But the Thornburgh Court upheld the facial validity
of regulations doing just that. See 490 U.S. at 404-05 & n.5, 41819, 109 S. Ct. at 1877 & n.5, 1884-85.
16

App-36
has no other way to send Prison Legal News to inmate
subscribers in Florida.
It is a close call, but we reject PLN’s argument
that no alternative means exist here. The Supreme
Court has made clear that prisons do not have to
provide exact, one-for-one substitutes to provide
alternative means. See id. at 92, 107 S. Ct. at 2263
(holding that a prison regulation satisfied this factor
because it did not “deprive prisoners of all means of
expression,” and instead barred “communication only
with a limited class of other people with whom prison
officials have particular cause to be concerned”). Even
if PLN cannot deliver Prison Legal News to its inmate
subscribers in Florida, this factor is satisfied as long
as there is some other way to exercise its right of
access to inmates. See Thornburgh, 490 U.S. at 41718, 109 S. Ct. at 1884 (stating that the second factor
was satisfied even though inmates could not attend a
particular Muslim religious ceremony because they
could “participate in other Muslim religious
ceremonies”) (citing O’Lone v. Estate of Shabazz, 482
U.S. 342, 107 S. Ct. 2400 (1987)).
Although PLN cannot publish its magazine
without ads and cannot afford to publish a Floridaonly version, it can send its other publications to
Florida inmates. For example, PLN publishes a
handbook called the Prisoners’ Guerrilla Handbook,
which describes various educational programs for
prisoners. The Department does not impound that
handbook. PLN also distributes to inmates a variety
of books about daily life in prison, incarceration in the
United States, and related topics. See Livingston, 683

App-37
F.3d at 209-10. There is no indication that those books
are impounded.
PLN’s argument focuses solely on its ability to
send Prison Legal News to Florida inmates, but
“adequate alternatives” can exist even “where
prisoners [are] cut off from unique and irreplaceable
activities.” Id. at 219; see also id. at 209, 218-19
(concluding that the second factor favored the
corrections department, which had banned five of
PLN’s books in Texas prisons, because the
“alternatives left open to PLN to communicate its
intended message to [the inmates were] extensive,” as
it could distribute “countless other books” to inmates).
Sending alternate publications might not be “ideal” for
PLN, but Turner does not demand the ideal. See Yang
v. Mo. Dep’t of Corr., 833 F.3d 890, 894-95 (8th Cir.
2016) (upholding a prison regulation that prohibited a
Chinese inmate from corresponding in Chinese with
his Chinese-speaking relatives in China, who did not
speak English, because the inmate could still
correspond in English, receive visitors, and make
domestic and international calls). The second factor
favors the Department or, perhaps more accurately,
does not disfavor the Department.
c. The Third Turner Factor: Impact
of Accommodating the Asserted
Right
The “third consideration is the impact [that]
accommodation of the asserted constitutional right
will have on guards and other inmates, and on the
allocation of prison resources generally.” Turner, 482
U.S. at 90, 107 S. Ct. at 2262.

App-38
As we’ve explained, the Department impounded
every monthly issue of Prison Legal News during the
five-year period for which there is evidence in the
record because the magazine’s ads give inmates the
opportunity to use prohibited services, which creates
security problems. It follows that if the Department
admits an issue of the magazine, it would have to
allocate more time, money, and personnel in an
attempt to detect and prevent security problems
engendered by the ads in the magazines. See Simpson,
879 F.3d at 281 (“Requiring Cape Girardeau to
abandon the postcard-only policy would force the jail
to dedicate more time and resources to searching the
mail, which would detract from the officers’ other
duties related to security and inmate welfare.”);
Woods, 652 F.3d at 750 (stating that a ban on pen pal
websites passed the third Turner factor because pen
pal scams “unduly distract[ed] prison officials from the
day-to-day affairs they must manage in order to
maintain a safe atmosphere for everyone in the prison
environment”). PLN’s subscribers could share copies
of the magazine and its ads with non-subscribing
inmates or spread information by word-of-mouth
about the companies offering the prohibited services.
See Thornburgh, 490 U.S. at 412, 109 S. Ct. at 1881
(stating that periodicals “reasonably may be expected
to circulate among prisoners, with the concomitant
potential for coordinated disruptive conduct”). As
Upchurch testified, that “ripple effect” increases the
burden on Department staff. See Turner, 482 U.S. at
90, 107 S. Ct. at 2262 (“When accommodation of an
asserted right will have a significant ripple effect on
fellow inmates or on prison staff, courts should be
particularly deferential to the informed discretion of

App-39
corrections officials.”) (quotation marks omitted). The
third factor favors the Department.
d.

The Fourth Turner
Exaggerated Response

Factor:

The final Turner factor requires us to consider
whether the impoundments of Prison Legal News are
“an exaggerated response to prison concerns.” Id.
(quotation marks omitted). The “existence of obvious,
easy alternatives may be evidence that the
regulation . . . is an exaggerated response” to a
problem, while the “absence of ready alternatives is
evidence of the reasonableness of a prison regulation.”
Id. (quotation marks omitted). PLN argues that the
Department’s decision to impound the magazine is an
exaggerated response to its security concerns because
no other corrections department in the nation
impounds this particular magazine based on its ad
content. And it points to several supposedly simple
alternatives to impoundment that would alleviate the
Department’s security concerns: prohibiting inmates
from calling out to cell phones, switching to a stampless system, or attaching a flyer to each issue of Prison
Legal News to remind inmates not to use the
prohibited services.
The Department’s decision to impound Prison
Legal News is not an exaggerated response to its
security concerns. Although the “policies followed at
other well-run institutions [are] relevant to a
determination of the need for a particular type of
restriction,” such policies are not “necessarily
controlling.” Procunier v. Martinez, 416 U.S. 396, 414
n.14, 94 S. Ct. 1800, 1812 n.14 (1974), overruled on
other grounds by Thornburgh, 490 U.S. at 413-14, 109

App-40
S. Ct. at 1881-82. “[T]he Supreme Court has made it
patently clear that the Constitution does not mandate
a lowest common denominator security standard
whereby a practice permitted at one penal institution
must be permitted at all institutions.”17 Pope, 101 F.3d
at 1385; see also Crime Justice & Am., Inc. v. Honea,
876 F.3d 966, 971, 978 & n.6 (9th Cir. 2017) (rejecting
the plaintiff’s argument that a ban on its magazine
coming into a county’s jail was an exaggerated
response to safety concerns, even though the magazine
was “widely distributed at other jails,” because the
county did not have as much control over the inmates
There is no support for PLN’s argument that the Department
has the burden of showing something unique about its
institutions to justify its impoundment decisions. Cf. Overton,
539 U.S. at 132, 123 S. Ct. at 2168 (“The burden . . . is not on the
State to prove the validity of prison regulations but on [the
challenger] to disprove it.”). PLN cites Holt v. Hobbs, 574
U.S. ___, 135 S. Ct. 853, 859 (2015), where the Supreme Court
held that Arkansas’ ban on prisoners having 1/2 inch beards
substantially burdened a Muslim inmate’s religious exercise. The
Supreme Court observed that most states and the federal
government permitted inmates to grow beards of that length, and
stated that “when so many prisons offer an accommodation, a
prison must, at a minimum, offer persuasive reasons why it
believes that it must take a different course . . . .” Id. at 866. The
Court analyzed that claim under the Religious Land Use and
Institutionalized Persons Act, which requires the government to
show that its regulation is the least restrictive means of
furthering a compelling interest. Id. at 863. Turner, by contrast,
does not require the Department to use the “least restrictive
means” to promote prison security. Turner, 482 U.S. at 90-91, 107
S. Ct. at 2262. And even under RLUIPA, a state need not permit
an accommodation just because others do. See Knight v.
Thompson, 796 F.3d 1289, 1291, 1293 (11th Cir. 2015) (rejecting
the argument that the policies of 39 other prison systems
rendered invalid the challenged prison policy).
17

App-41
in its jail compared to other counties). There is no onesize-fits-all approach to prison management. As
Upchurch testified, every institution faces different
security problems and deals with those problems in
different ways. For example, some prisons put
microwaves in communal inmate living areas, while
others would never allow that arrangement out of fear
that an inmate would heat up hot water and use it as
a weapon. Upchurch explained that what matters to
the Department is not the policies of corrections
departments in other states, but maintaining prison
security and public safety.18 In his view, the
impoundments of Prison Legal News help accomplish
those goals.
PLN’s proposed alternatives range from bad to
worse. Prohibiting inmates from calling cell phones
would make it difficult for them to keep in touch with
family and friends (because of the decline in landline
use), which in turn would undermine efforts to
rehabilitate inmates. Switching to a stamp-less
system would cost $70,000 (to change the
Department’s banking system), require changing two
state statutes, and force the Department to solve the
One reason that the policies of departments in other states
do not matter so much is that circumstances vary from state to
state. For example, PLN’s evidence shows that the Arizona
Department of Corrections does not impound Prison Legal News.
PLN’s expert admitted, however, that Arizona’s “physical
structures and facilities are more secure than” Florida’s, which
tends “to use dormitories for certain categories of prisoners that
many other states would not put in a dormitory.” Because of
differences in physical structures and facilities, the Department’s
security concerns differ from those of Arizona’s corrections
department.
18

App-42
logistical challenge of how inmates could send letters
from prison canteens. See Thornburgh, 490 U.S. at
419, 109 S. Ct. at 1885 (stating that courts must
consider the administrative inconvenience of proposed
alternatives).
Last and most definitely least, PLN proposes that
the Department follow New York’s lead and simply
attach to each issue of Prison Legal News a flyer
reminding inmates not to use the prohibited services.
Really? If all New York has to do to prevent inmate
misconduct and crime is gently remind them not to
misbehave, one wonders why that state’s prisons have
fences and walls. Why not simply post signs reminding
inmates not to escape? If New York wants to engage
in a fantasy about convicted criminals behaving like
model citizens while serving out their sentences, it is
free to do so, but the Constitution does not require
Florida to join New York in la-la-land. Though it was
hardly necessary to state the obvious, Upchurch
testified that a reminder flyer on the magazine would
not alleviate security concerns. See id. at 419, 109 S.
Ct. at 1884-85 (“In our view, when prison officials are
able to demonstrate that they have rejected a less
restrictive alternative because of reasonably founded
fears that it will lead to greater harm, they succeed in
demonstrating that the alternative they in fact
selected was not an ‘exaggerated response’ under
Turner.”). Like the first three factors, this final factor
favors the Department.
e. The Turner Factors: Conclusion
Upchurch summed up the relationship between
the impoundment of Prison Legal News and the
Department’s prison security and public safety

App-43
interests by stating that those rules “certainly help[ ]”
advance those interests. And that’s the point. The
impoundment of Prison Legal News is not a silver
bullet guaranteeing that inmates will not break the
rules and commit crimes while incarcerated. But the
record shows that a “reasonable relationship” does
exist between the Department’s decision to impound
the magazine and its prison security and public safety
interests. Turner, 482 U.S. at 91, 107 S. Ct. at 2262.
That is all Turner requires. Id. at 90-91, 107 S. Ct. at
2262. Because all four Turner factors favor the
Department, we hold that the impoundments of
Prison Legal News under Rules (3)(l) and (3)(m) do not
violate the First Amendment.
B. Due Process Claim
That the Department’s impoundments of Prison
Legal News do not violate the First Amendment
doesn’t let the Department entirely off the
constitutional hook. The district court ruled that the
Department violated PLN’s right to due process by
failing to provide it with notice for each impounded
issue, and the court entered an injunction requiring
the Department to do that. That was not an abuse of
discretion.
PLN must receive notice and an opportunity to be
heard each time the Department impounds an issue of
the magazine. See Perry, 664 F.3d at 1367; Montcalm
Publ’g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996)
(“We hold that publishers are entitled to notice and an
opportunity to be heard when their publications are
disapproved for receipt by inmate subscribers.”);
Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir.
2004) (following Montcalm); see also Londoner v. City

App-44
& Cty. of Denver, 210 U.S. 373, 385, 28 S. Ct. 708, 714
(1908) (“[D]ue process of law requires that . . . the
[party] shall have an opportunity to be heard, of which
he must have notice . . . .”).19 As the district court
ruled, the Admissible Reading Material Rule on its
face satisfies those requirements. When the
Department impounds an issue of a publication, the
rule requires that it send the publisher a notice form
listing the “specific reasons” for the impoundment of
that issue. Fla. Admin. Code r. 33-501.401(8)(b).20 The
We held in the Perry decision that there is a lower due
process standard for mass mailings (that is, bulk
correspondence). 664 F.3d at 1368. We reject the Department’s
argument that magazines sent to subscribers are mass mailings.
See Montcalm, 80 F.3d at 109 & n.2 (contrasting magazines sent
to individual subscribers with mass mailings, which are sent to
“each and every inmate at a given institution”). It is also not
enough that publishers may receive notice of an impoundment
from inmates. See Jacklovich, 392 F.3d at 433-34 (“[The]
publisher’s rights must not be dependent on notifying the
inmate[,] who in all likelihood will never see the
publication . . . .”).
19

PLN and the amici argue that the Department must provide
PLN with notice for each individual copy of Prison Legal News
that the Department impounds, even if the Department has
already sent notice that it has impounded a copy of that same
issue sent to another inmate. In other words, if the Department
impounds the January 2018 issue of Prison Legal News and
withholds 70 copies of that issue from its inmate subscribers,
then PLN wants notice forms for all 70 copies, not just one notice
for the January issue. Due process does not demand that much.
Under the administrative rule, once one facility impounds a
monthly issue, every other facility must impound that same issue
on the same grounds until the Literature Review Committee can
decide whether that issue can be admitted into the prisons. Id.
rr. 33-501.401(8)(c), (14)(a), (14)(c). Copy-by-copy notice is not
necessary for PLN to learn the reason(s) for the impoundment as
20

App-45
Literature Review Committee reviews every
impoundment decision, id. r. 33-501.401(14)(c), and
the publisher can independently appeal an
impoundment decision to that committee, id. r. 33501.401(15)(a).21
Those procedures, if applied, would have ensured
that for each impounded issue PLN received a notice
form listing the reasons for the impoundment. As the
Department acknowledges, however, that did not
happen for 26 out of the 62 monthly issues (42%)
impounded between November 2009 and December
2014. That failure rate increases to 87% when we take
into account defective notice forms that did not list the
reasons for the impoundment. Despite that
remarkable failure rate, the Department argues that
the Secretary cannot be enjoined because there is no
long as all copies are impounded for the same reason(s). See
Livingston, 683 F.3d at 223 (holding that due process does not
require copy-by-copy notice because later “denials of identical
publications amount to the routine enforcement of a rule with
general applicability”).
We also reject PLN’s and the amici’s argument that it is
entitled to more due process protections because of the content of
its magazine. See Shaw, 532 U.S. at 230, 121 S. Ct. at 1480
(rejecting the argument that courts should “enhance
constitutional protection [under Turner] based on their
assessments of the content of the particular communications”).
PLN argues that when the committee reviews an
impoundment decision it cannot reasonably gauge whether ads
are “prominent or prevalent” in the magazine because it receives
only a publication’s front cover and a copy of the pages with
problematic content. Fla. Admin. Code r. 33-501.401(8)(b). That
argument fails because publishers must send a copy of the entire
impounded issue when the publisher files its own appeal with the
committee. Id. r. 33- 501.401(15)(a)(2).
21

App-46
evidence that the failure to send the forms was a result
of a Department policy or custom to deprive PLN of
notice.22 The Department asserts that PLN should
find the mailroom workers who are responsible for the
failure to provide notice and sue them. No.
PLN doesn’t have to hunt and peck throughout
Florida’s correctional system for negligent mailroom
workers to sue. The buck stops with the Secretary. See
Fla. Stat. § 20.315(3) (“The head of the Department of
Corrections is the Secretary of Corrections. . . . The
secretary shall ensure that the programs and services
of the department are administered in accordance
with state and federal laws, rules, and
regulations . . . .”). This is not a case of one or two
notice letters lost in the mail or mailroom. PLN did not
receive notice forms for 42% of the impounded issues,
and many forms it received for other issues were
defective. PLN’s effort to enjoin the ongoing violation
of its right to due process is appropriate, and it seeks
only prospective relief against the Department. See
Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570
F.3d 1210, 1215 (11th Cir. 2009) (stating that the Ex
Parte Young doctrine permits “lawsuits against state
officials as long as the plaintiffs seek only prospective
The Department argues that PLN did not receive the
required notice because of negligent mailroom staff, and that the
negligent deprivation of notice cannot give rise to a procedural
due process violation. Cf. Jones v. Salt Lake County, 503 F.3d
1147, 1162-63 (10th Cir. 2007) (concluding that PLN’s due
process claim failed where a prison’s mailroom staff negligently
failed to deliver the magazine to inmate subscribers). But the
Department deliberately impounded Prison Legal News, which
means that it had to provide notice to PLN for each impounded
issue.
22

App-47
injunctive relief to stop ongoing violations of federal
law”). And as the district court pointed out, its
injunction “essentially requires compliance with the
[Department’s] own rule.” The Secretary should not
protest too loudly an order to enforce a rule she is
statutorily required to enforce. See Fla. Stat.
§ 20.315(3).
IV. Conclusion
The Department’s concerns with the ads in Prison
Legal News are reasonably related to its legitimate
interests in prison security and public safety, so we
defer to its decision and hold that the impoundments
of Prison Legal News under Rules (3)(l) and 3(m) do
not violate the First Amendment. But with the power
to impound Prison Legal News comes the duty to
inform PLN of the reasons for the impoundments. The
Department did not do that, which is why the district
court did not abuse its discretion in entering an
injunction to require the Department to adhere to its
own notice rules.
AFFIRMED.

App-48
Appendix B
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
________________
No. 4:12cv239-MW/CAS
________________
PRISON LEGAL NEWS,
v.

Plaintiff,

JULIE L. JONES, in her official capacity as Secretary of
the Florida Department of Corrections,
Defendant.
________________
Filed: Oct. 5, 2015
________________
AMENDED ORDER1
________________
This case involves an as-applied First
Amendment challenge to Florida Administrative Code
Rule 33-501.401(3)(l) and (m), as well as a procedural
due process claim brought under 42 U.S.C. § 1983.
Prison Legal News2 and Julie L. Jones, on behalf of
the Florida Department of Corrections, litigated this
case to a four-day bench trial beginning on January
1 The original order, ECF No. 251, is amended as a result of
Plaintiff’s motion to alter or amend the judgment, ECF No. 258.
2
In 2009, PLN, the corporation, changed its name to the
Human Rights Defense Center. Tr. of Trial 36:24-:25 (Jan. 5,
2015). This order continues to refer to the entity as PLN.

App-49
5th, 2015.3 This order sets forth the findings of fact,
analysis of law, and verdict.
I.
The parties dispute the constitutionality of the
FDOC’s impoundment and rejection of PLN’s
magazine, Prison Legal News, a monthly publication
comprising writings from legal scholars, attorneys,
inmates, and news wire services. FDOC regulates
inmate mail with Rule 33-501.401 of the Florida
Administrative Code, titled “Admissible Reading
Material.” Rule 33-501.401 authorizes the FDOC to
screen all mail entering its facilities and sets forth a
detailed process by which it may impound that mail.
Section (3) of Rule 33-501.401 contains thirteen
subsections, labeled (a) through (m), providing distinct
criteria by which incoming publications “shall be
rejected” from the prison population. The First
Amendment action specifically challenges subsections
(l) and (m), ECF No. 14 ¶ 22, which state:
[A] [p]ublication[] shall be rejected when . . .
(l) It contains an advertisement promoting
any of the following where the advertisement
The sole remaining defendant in this action, Julie L. Jones, is
the current Secretary of the FDOC. Two other secretaries have
cycled through the FDOC during this litigation, Kenneth S.
Tucker and Michael D. Crews. Some early documents are
directed at these individuals. The Secretary of the FDOC is
responsible for the overall management of the Florida prison
system and has ultimate responsibility for the promulgation and
enforcement of all FDOC rules, policies and procedures, and
administrative code provisions. See ECF No. 14 ¶ 15; ECF No. 68
¶ 15. For simplicity, this order refers to Defendant Jones as the
FDOC.
3

App-50
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.
[or]
(m) It otherwise presents a threat to the
security, order or rehabilitative objectives of
the correctional system or the safety of any
person.
Fla. Admin. Code R. 33-501.401(3)(l), (m) (2009)
(amended 2010).4
As relief, PLN requests a declaratory judgment
that Rule 33-501.401(3) is unconstitutional as applied
to Prison Legal News. ECF No. 14, at 13. PLN also
That is the 2009 version. The Rule was amended in 2010. That
amendment did not change subsections (3)(l) and (m). In the
version before 2009, the prohibition against advertisements for
three-way calling services, pen pal services, the purchase of
products or services with postage stamps, and conducting a
business while incarcerated appeared in section (4), not
subsection (3)(l). See Fla. Admin. Code R. 33-501.401(4) (2006)
(amended 2009). For clarity, this Court refers to these
prohibitions as (3)(l). The other subsection at issue in this case is
(3)(m), the Rule’s residual clause. Prior to 2009, the residual
clause appeared under subsection (3)(l). See Fla. Admin. Code R.
33-501.401(3)(l) (2006) (amended 2009). This Court refers to the
residual clause as (3)(m).
4

App-51
seeks an injunction that prohibits the impoundment
and rejection of Prison Legal News, orders the delivery
of all previously censored and withheld issues, and
requires individualized notice and an opportunity to
be heard whenever a copy of an issue is rejected.5
Finally, PLN seeks the same due process remedies for
the books and information packets it has mailed to
FDOC inmates, which it maintains the FDOC
impounded without notice. Tr. of Trial 4-5 (Jan. 8,
2015).
II.
This part of the order sets forth background facts
that help situate the lawsuit in the broader contest
between the parties.
A.
This is not the parties’ first rodeo—that would
have been in February 2003, when the FDOC began
censoring Prison Legal News due to its advertisement
of services accepting postage stamps as payment,
three-way calling services, pen pal services, and offers
to purchase inmate artwork. See Prison Legal News v.
Crosby, No. 3:04-cv-14-JHM-TEM, slip op. at 5-8, ¶¶ 4,
7, 14-16 (M.D. Fla. July 28, 2005), Pl.’s Trial Ex. 23
(the “Moore Order”). PLN sued the FDOC in January
PLN attempted to add a void-for-vagueness claim. It sought
leave to file a second amended complaint on February 19, 2013.
ECF No. 119. That motion was denied for failure to show good
cause. ECF No. 127, at 3. At the time, the trial was set for May
13, 2013. ECF No. 106. The trial would eventually be delayed by
more than a year. Had this Court known, perhaps it would have
ruled differently on the motion to amend. Either way, PLN did
not again move to amend the complaint until trial. By then it was
far too late, and the motion was denied.
5

App-52
2004 challenging that censorship under the First
Amendment.6 Id. at 2.
While the suit was pending in March 2005, the
FDOC amended Rule 33-501.401 to clarify that
publications would not be rejected for the advertising
content in that case, so long as those ads are “merely
incidental to, rather than being the focus of, the
publication.”7 Moore Order 15. Following this
The First Amendment challenge to the censorship was not the
sole claim. PLN also argued that Rule 33-602.207 of the Florida
Administrative Code, which prohibits prisoners from engaging in
outside businesses or professions and which the FDOC
interpreted as proscribing compensation for writing for Prison
Legal News, infringes on PLN’s First Amendment rights as a
publisher. Moore Order 17. The Eleventh Circuit would
eventually disagree. See Prison Legal News v. McDonough, 200
F. App’x 873, 875 (11th Cir. 2006). Lastly, PLN had originally
asserted a due process claim under the Fifth and Fourteenth
Amendments, but abandoned that claim at the start of the bench
trial. Moore Order 2 n.1.
6

Rule 33-501.401 has been amended several times. The
FDOC’s interpretation of the Rule has also fluctuated. In the first
lawsuit, “the FDOC changed its position several times as to
whether PLN’s magazine contained prohibited material. In early
2003, the FDOC began impounding issues of PLN’s magazine
because they contained ads for three-way calling services, which
are prohibited for Florida inmates because they pose a threat to
prison security. In November 2003, the FDOC reversed its
decision and allowed for delivery of eight issues that it had
previously impounded. However, a month later, in December
2003, the FDOC again decided to impound the magazine for
including three-way calling service ads due to ongoing security
concerns. By March 2004, the FDOC was satisfied that its
telephone provider could properly monitor prisoners’ calls and
that the three-way calling service ads were no longer a security
concern. Therefore, the FDOC again approved delivery of the
magazine.” McDonough, 200 F. App’x at 875.
7

App-53
amendment, the FDOC promised to no longer
impound Prison Legal News for its advertising
content. Id. at 13-15. The FDOC ceased impounding
and rejecting Prison Legal News for the duration of the
litigation and argued that PLN’s First Amendment
challenge to the Rule was moot.
This convinced the district court. Four months
after the amendment was implemented, it found that
the FDOC had “shown that the [newly adopted]
procedures . . . allow for distribution of [Prison Legal
News] in its current format” and that the magazine
would not be rejected solely on the basis of the
advertising content at issue. Id. at 15-16. The
Eleventh Circuit reiterated these sentiments on
appeal. In rejecting PLN’s argument that an
injunction was necessary to prevent further
censorship, the Eleventh Circuit stated:
We agree with the district court’s finding
that, although the FDOC previously wavered
on its decision to impound the magazine, it
presented sufficient evidence to show that it
has “no intent to ban PLN based solely on the
advertising content at issue in this case” in
the future. The FDOC demonstrated that its
current impoundment rule does allow for
distribution of PLN in its current format and
that the magazine will not be rejected based
on its advertising content. The FDOC
officially revised its impoundment rule and
has not refused to deliver issues of the
magazine since this amendment. . . . We have
no expectation that FDOC will resume the

App-54
practice of impounding publications based on
incidental advertisements.
McDonough, 200 F. App’x at 878. Since the Eleventh
Circuit disposed of the claim as moot, it further
declared that, “[a]s to the current rule, we offer no
opinion on its constitutionality.” Id.
B.
Less than three years after the Eleventh Circuit’s
ruling in McDonough, the FDOC amended the Rule to
provide an additional ground for rejection under (3)(l).
Under the revised Rule, publications with “prominent
or prevalent” advertisements for services prohibited by
(3)(l) would also be rejected. Fla. Admin. Code R. 33501.401(3)(l) (emphasis added).
The 2009 amendments became effective on June
16, 2009. Def. Crews’ Obj. to Pl.’s First Set of
Interrogs. to Def. Crews 2-3 (Jan. 18, 2013), Pl.’s Trial
Ex. 30. The FDOC has impounded every issue of
Prison Legal News since September 2009. Tr. of Trial
105:24-106:2 (Jan. 6, 2015).
PLN initiated this suit on November 17, 2011.
ECF No. 1. On December 16, 2011, PLN filed its First
Amended Complaint. ECF No. 14. Only two counts
remain, both against the FDOC. See ECF No. 117
(confirming the dismissal of the other two original
defendants under a settlement agreement). Count III
is a First Amendment as-applied challenge to
subsections (3)(l) and (m) of the Rule. ECF No. 14, at
11, ¶¶ 40-43. PLN alleges that the FDOC’s actions “in
refusing to deliver or allow delivery of Plaintiff’s
publications to Florida inmates in its custody, solely
because of the presence of certain advertisements
within these publications, violate Plaintiff’s rights to

App-55
free speech, press and association as protected by the
First and Fourteenth Amendment to the U.S.
Constitution and 42 U.S.C. § 1983.” Id. ¶ 43. And, in
Count VI, PLN contends that the FDOC’s “failure and
refusal to provide Plaintiff with constitutionally
required notice and an opportunity to be heard and/or
protest the decision each time Plaintiff’s publications
are censored . . . violates Plaintiff’s rights to due
process of law protected by the Fifth and Fourteenth
Amendments . . . and by 42 U.S.C. § 1983.” Id. at 14,
¶¶ 52-55.
On January 5, 2015, the parties began a four-day
bench trial on these two counts. ECF No. 235. At its
conclusion, the Court extended the parties an
opportunity to brief certain key issues. See ECF Nos.
241-44, 246.
III.
In this part are the facts of the case, as found by
this Court after careful consideration of all the
evidence presented at trial. Most facts are undisputed.
For those in dispute, the order lays out the competing
views before resolving them.
A.
Established in 1990 by Paul Wright and Ed
Meade, Prison Legal News is a monthly magazine that
reports on news and legal developments related to the
criminal justice system. Tr. of Trial 32:8-:22 (Jan. 5,
2015).8 PLN, a nonprofit with its principal place of

8 The magazine was initially titled Prisoner’s Legal News. Tr.
of Trial 122:22-123:5 (Jan. 5, 2015). In 1992, the editors changed
the name to Prison Legal News because they “thought that [the]

App-56
business in Lake Worth, Florida, publishes Prison
Legal News. Tr. of Trial 36:18-37:2 (Jan. 5, 2015). Its
mission is to inform the public about events in prisons
and jails and the need for progressive criminal justice
reform, to inform prisoners and their advocates about
these events and how to advocate for their rights, and
to enhance rehabilitation for prisoners, ensure
transparency and increase accountability of prison
officials. Tr. of Trial 32:23-33:9 (Jan. 5, 2015).
Over the past 25 years, Prison Legal News has
published over 700 articles on the FDOC and Florida
prisons and jails, with coverage ranging from
misconduct by FDOC contractors to individual cases
involving a host of legal issues. Tr. of Trial 51:15-:22
(Jan. 5, 2015). Prisoners are the magazine’s primary
audience. Tr. of Trial 123:6-:10 (Jan. 5, 2015).
Prison
Legal
News
started
carrying
9
advertisements in 1996. Tr. of Trial 41:16-:22 (Jan. 5,
2015). But it was not until February 2003 that the
FDOC censored Prison Legal News for its advertising
content. Tr. of Trial 41:23-42:8, 184:9-:10 (Jan. 5,
2015). The FDOC specifically took issue with the
publication’s advertisement of services accepting
postage stamps as payment, three-way calling
services, pen pal services, and offers to purchase
news and information was too important to . . . restrict it to
prisoners.” Id.
The FDOC says that advertisements are unnecessary. The
evidence overwhelmingly refutes that argument. This Court
finds that without advertisements PLN could not print Prison
Legal News. This Court further finds that printing a Florida-only
edition of Prison Legal News would be cost-prohibitive. Tr. of
Trial 60:23-71:14 (Jan. 5, 2015).
9

App-57
inmate artwork; proscribed mostly by subsection (3)(l).
Moore Order 5-8. The justification was that those
advertisements presented a security risk because they
promoted prohibited services. Id. at 3.
PLN sued and the FDOC subsequently amended
the Rule several times during the 2005 litigation,
vacillating between admitting publications containing
(3)(l) advertisements and rejecting them. Moore Order
7. Eventually the FDOC settled on a rule that would
not reject publications such as Prison Legal News for
advertising services prohibited by subsection (3)(l), so
long as the advertisements were “merely incidental to,
rather than being the focus of, the publication.” Id. at
8.
This Court finds that there were several reasons
for this change. First, the FDOC believed that it had
in place security measures to alleviate some of the
concerns associated with the prohibited services
advertized in Prison Legal News. Significantly, the
FDOC trusted that its telephone vendor, at the time
MCI, could detect and block three-way calls and callforwarding. See, e.g., id. at 7; Tr. of Trial 78:11-:22
(Jan. 6, 2015). Second, the FDOC recognized that
“incidental” advertisement did not pose a significant
security threat to the prisons. Moore Order 15.
Following this recognition, the FDOC promised that it
would no longer impound and reject Prison Legal
News “in its current format.” Id. at 16. The Rule was
not, as PLN claims, amended to “moot” the 2005 case.
Tr. of Trial 78:11-:22 (Jan. 6, 2015).
Finally, this Court finds that the 2005 litigation
did not concern services prohibited by subsection
(3)(m). See Tr. of Trial 69:9-70:8 (Jan. 6, 2015)

App-58
(discussing the major concerns in the prior litigation);
Tr. of Trial 214 (Jan. 7, 2015) (testifying that prior
litigation was not about subsection (3)(m)). This
litigation does.
B.
From 2005 to 2009 the FDOC, proceeding under
the revised Rule, did not reject Prison Legal News.
Then, in June 2009, the FDOC once again amended
subsection (3)(l) of the Rule. Along with this revision
came the decision to resume rejection of publications
such as Prison Legal News for advertising services

App-59
prohibited by subsection (3)(l).10 11 At trial, the parties
vigorously disputed what prompted these changes.
At times during this litigation the FDOC has taken the
position that the 2009 revisions were not substantive—that is,
that the sole purpose was to clarify “incidental” to assist
mailroom staff. The witnesses at trial could not agree on whether
the change was substantive, and the parties never directly
addressed the issue.
10

If truly not substantive, adding “prominent or prevalent”
should not have resulted in heightened censorship, generally. Yet
that is precisely what happened. Within a few months the FDOC
resumed rejection of Prison Legal News, even though there was
no noticeable change in the magazine between June 2009, when
the rule was implemented, and September 2009, the first issue
impounded since 2005. See Def.’s Trial Ex. 1; Pl.’s Trial Ex. 79.
What explains this inconsistency? First, it may not be an
inconsistency at all. It could be the case that Prison Legal News’
advertising content had ballooned well beyond “incidental” back
in October 2008, when it made the permanent jump from 48
pages per issue to 56. See Pl.’s Trial Ex. 79, at 38. This would
mean that FDOC mailroom staff mistakenly admitted Prison
Legal News for nearly a year. Under this view, the 2009
amendment worked. The staff has gotten it right ever since,
impounding and rejecting every issue of the magazine from
September 2009 to the present.
This Court finds, however, that the true and more obvious
answer is that the 2009 amendment was not a simple
“restyling”—to borrow from the judicial Committee on Rules of
Practice and Procedure—of the Rule. The evidence at trial bears
this out. For instance, Susan Hughes, chairwoman of the
Literature Review Committee from 2012 to October 2013,
testified that she understood the 2009 revision to be a change in
the rule. Tr. of Trial 2:13-:17, 6:9-7:8 (Jan. 7, 2015). And, as this
Court will discuss, the FDOC provided additional justifications
for the substantive decision to again reject Prison Legal News,
such as renewed security concerns.
11 The FDOC also began censoring Prison Legal News for
advertisements prohibited by subsection (3)(m).

App-60
Everyone agrees it was not any major incident or
tragedy related to (3)(l) services, since none occurred
between 2005 and 2009.12 Tr. of Trial 5:9-:12 (Jan. 6,
2015).
FDOC administrators gave three primary reasons
for amending subsection (3)(l) in 2009, each of which
this Court deems credible. See Tr. of Trial 58:20-:21
(Jan. 6, 2015). The first was a disagreement among the
administrators “over whether the prior policy met the
needs of the department.” Tr. of Trial 59:8-:10 (Jan. 6,
2015). According to James Upchurch, new technology,
such as the advent of Voice over Internet Protocol
(“VoIP”) technology, forced the FDOC to reconsider
previous security decisions. Tr. of Trial 19:12-:22 (Jan.
6, 2015). Securus is the FDOC’s current telephone
vendor. Like MCI, it works by detecting noises and
clicks made on a phone line that signal the initiation
of three-way calls and call-forwarding. Tr. of Trial 1516 (Jan. 6, 2015). Circumventing the system generally
requires obfuscating those specific noises or
transferring calls without any noise at all. VoIP
employs the latter. Tr. of Trial 19:12-:22 (Jan. 6, 2015).
The changes in technology proved wrong the FDOC’s
belief that it had adequate security measures to curb
three-way calling and call-forwarding.
The second reason given was dissatisfaction with
the vagueness of subsection (3)(l). FDOC
administrators sought to clarify the circumstances
While no single, major incident prompted the amendment,
this Court finds that there is evidence that companies and
prisoners disregarded prison rules against exchanging stamps for
money and services. See, e.g., Tr. of Trial 36:18-40:13 (Jan. 6,
2015).
12

App-61
under which publications should be censored for their
advertising content. See Tr. of Trial 59:11-:14 (Jan. 6,
2015); see also Pl.’s Trial Ex. 30 (identifying clarity as
the goal of the 2009 revisions). They did so with the
antonyms “prominent or prevalent,” which the FDOC
believed would assist mailroom staff in their decisionmaking. Lastly, the FDOC had noticed an increase in
the volume of advertisements related to postage
stamps. Tr. of Trial 59:16-:18 (Jan. 6, 2015).
A major theme in PLN’s First Amendment
challenge is that the FDOC had no legitimate reasons
for amending subsection (3)(l). So, PLN endeavored to
undermine these reasons all through trial.
PLN asserts that the first reason—the purported
circumvention of Securus—is false. Securus, like MCI,
is contractually obligated to block the call services at
issue. This contract was recently renewed by the
FDOC. That means the system works, says PLN.
Otherwise, the FDOC would not have renewed the
contract.
FDOC offers evidence to refute PLN’s argument.
First, Securus itself admits it is not 100% effective.
Second, FDOC personnel monitoring phone calls have
heard inmates successfully transfer calls. Third,
hundreds of thousands of attempted calls have been
detected by Securus. According to the FDOC, this
means that some prisoners successfully transfer calls,
or else there would not be so many attempts.
FDOC officials also said that increasing Securus’
effectiveness would be too costly. They explained that
Securus could be made more effective by increasing its
sensitivity to noise. The heightened sensitivity would
capture more attempts, but also result in more false

App-62
positives. It would shutdown inmates placing ruleabiding phone calls. This would lower prisoner morale
and increase tension to untenable levels. Tr. of Trial
15-16:25 (Jan. 6, 2015). So it goes.
With respect to the first reason, this Court makes
the following determinations. At the time of the 2005
litigation, the FDOC believed that its telephone
vendor could detect all attempts at three-way calling
and call-forwarding. After all, Securus, its current
vendor, is contractually obligated to block three-way
calls and call-forwarding attempts. Yet it is unable to
do so. Some calls, including those transferred using
VoIP technology, elude the system. There is no
evidence to suggest that any other provider could do a
better job than Securus. And while it is theoretically
possible to increase Securus’ efficacy, any benefit from
doing so would be offset by attendant prison
instability.
As to the third reason, PLN points out that the
FDOC never ran a study to determine whether
advertisements accepting stamps as payment
increased between 2005 and 2009. Tr. of Trial 59:1960:7 (Jan. 6, 2015). The FDOC instead relied on plain
observations and noticed that the number of such
advertisements had grown “substantially.” Tr. of Trial
59:19-60:18 (Jan. 6, 2015); accord Tr. of Trial 8:22-9:1
(Jan. 6, 2015).
That is beside the point. In fact the magazine did
increase in size. Tr. of Trial 109:18-110:6 (Jan. 5,
2015). In four years the magazine went from 48 pages
to 56 pages per issue, containing both more
substantive, non-offending content and prohibited
advertisements. See Pl.’s Trial Ex. 79 (providing total

App-63
number of pages for every issue of Prison Legal News
dating back to January 2002); Def.’s Trial Ex. 7.
Qualitatively, the advertisements have changed as
well. The number of “half page or greater” (3)(l) ads
have increased. Def.’s Trial Ex. 7. And since 2010,
PLN has run an offending advertisement on the back
cover of the magazine. Id. Today, Prison Legal News is
64-pages long. See Pl.’s Trial Ex. 79. No formal study
is necessary to see that.
PLN additionally argues that the FDOC is wrong
to look to the total number of advertisements. Tr. of
Trial 49:9-:12 (Jan. 7, 2015). Instead, as PLN would
have it, the proper measure is the percentage of the
magazine that is prohibited advertisement. Tr. of
Trial 49:14-50:2 (Jan. 7, 2015). The merits of this
argument are explored later. For now, suffice to say
that the percentage of advertisements for three-way
calling services, stamps as payment, pen pal services,
and conducting a business services—that is, those
prohibited by subsection (3)(l) of the Rule—increased
only slightly from 9.21% in 2005 to 9.8% in 2009. See
Pl.’s Trial Ex. 79, at 85. In 2014, (3)(l)-prohibited
advertisements averaged 15.07% of the publication.
Id.13
Notably, neither this “study” nor anything else
introduced by the parties examines the percentage for
advertisement prohibited by (3)(m). See Tr. of Trial
242, 250:9-:15 (Jan. 5, 2015) (explaining methods,
Evidence before this Court shows that advertising content in
Prison Legal News has been on the rise since 2005. Paul Wright
testified that PLN does not intend to further increase the number
and size of offending advertisements. Tr. of Trial 59:8-:10 (Jan. 5,
2015). This Court has no reason to disbelieve Mr. Wright.
13

App-64
which excluded (3)(m) ads); see also Def.’s Trial Ex. 7
(providing number of advertisements forbidden by
other rules, including (3)(m), and showing that, by
2009, Prison Legal News’ advertising content had
widened to include more types of prohibited
advertisements; but still not revealing the percentage
of (3)(m) advertisements).
Another contention made by PLN, which it hopes
this Court will adopt as fact, is that FDOC officials
amended the Rule in 2009 specifically to exclude
Prison Legal News. PLN cites email exchanges among
FDOC administrators where they discuss the 2009
amendment and how the new rule might “run afoul” of
the promises made in the 2005 litigation. See, e.g., Tr.
of Trial 61-66 (Jan. 6, 2015); Pl.’s Trial Ex. 57a-57i. To
PLN, these emails are a smoking gun of the ulterior
motive animating the 2009 revisions. See Tr. of Trial
135-136 (Jan. 5, 2015) (accusing the FDOC of
censoring Prison Legal News for its editorial content).
At minimum, the emails reveal that FDOC
officials were aware that the 2009 changes would lead
to rejection of Prison Legal News. This supports the
finding that the FDOC intended the 2009
amendments to be substantive. And perhaps when
placed, as PLN does, in the broader context of FDOC
prevarication and inconsistent application of the Rule,
they hint at chicanery (more on this later). But it is
still a stretch to say that the emails demonstrate that
FDOC officials amended the Rule in 2009 specifically
to exclude Prison Legal News.
These emails are the closest thing PLN presented
to direct evidence that the FDOC targets Prison Legal
News. Other circumstantial evidence relies heavily on

App-65
inference to support this theory. PLN reasons, for
example, that security concerns could not possibly
underlie the amendment because no major incident or
tragedy related to the services advertised occurred
between 2005 and 2009. The Rule must then be a
façade, masking institutional bias against a
publication that informs prisoners of their rights.
Such a finding would be nothing less than
conjecture. There are many reasons, not the least of
which is that there is some evidence of stamp-related
problems. Animus is not the only inference that can be
drawn from the fact that the FDOC amended
subsection (3)(l) before a calamity transpired. Plus,
the FDOC unequivocally denies any malice, its
officials going as far as saying that they view Prison
Legal News favorably. See, e.g., Tr. of Trial 212:9-:13
(Jan. 7, 2015). More importantly, PLN failed to offer
any evidence showing that the FDOC does not censor
other publications containing similar advertising
content, or that the only other publications that the
FDOC censors contain editorial content similar to
Prison Legal News. To the contrary, the FDOC
produced evidence, though limited, that it has
repeatedly rejected other publications on (3)(l)
grounds, some of which on their face do not resemble
Prison Legal News. See, e.g., Def.’s Trial Ex. 12, at 3739 (censoring American Arab Message for advertising
services for stamps), 63-65 (censoring Cellmates for
pen pal advertisement), 69-71 (censoring Butterwater
catalog for advertising services for stamps), 72-74
(censoring Picture Entertainment for advertising
services for stamps); Def.’s Trial Ex. 15.

App-66
Here, the more limited conclusion is the soundest.
And that conclusion is that FDOC officials did not
amend subsection (3)(l) in 2009 because they disliked
Prison Legal News’ “editorial” content.14 And there is
no evidence, this Court finds, that the FDOC censors
Prison Legal News but not other publications with
similar advertising content. Lastly, with respect to
subsection (3)(l), this Court finds, consistent with the
expert
testimony
presented
at
trial,
that
advertisements for such services implicate legitimate
security concerns. Tr. of Trial 69-147 (Jan. 7, 2015).
Turning to subsection (3)(m), this Court makes
the following findings. Subsection (3)(m) contains a
residual clause requiring the FDOC to reject
publications that otherwise present a threat to
security, order, rehabilitative objectives, and safety.
From 2009 onward, the FDOC became increasingly
concerned with services falling outside the ambit of
(3)(l) and within the purview of (3)(m). See, e.g., Tr. of
Trial 15:14-:20 (Jan. 7, 2015). Chiefly troubling among
these services—at least to the FDOC—are prisoner
concierge services, which enable inmates to establish
outside bank accounts, run background checks, and
locate people, among other things. See Tr. of Trial
69:9-70:8 (Jan. 6, 2015); see also Tr. of Trial 73:13-:21
(Jan. 7, 2015) (listing services falling under umbrella
term “prisoner concierge services”). This Court finds,
It is not entirely clear how much “motive” matters, if at all,
in the First Amendment analysis. The order later explores the
divergent case law on this issue. Ultimately, this Court does not
decide whether motive matters because, even if it does, PLN
failed to present sufficient evidence that FDOC officials acted
with ill will in 2009 when they amended the Rule and resumed
impounding Prison Legal News.
14

App-67
consistent with the expert testimony produced by the
FDOC, that advertisements for these services
constitute legitimate security risks. See Tr. of Trial 69147 (Jan. 7, 2015).
Prison Legal News contained these sorts of
advertisements in 2009. See Def.’s Trial Ex. 7. It did
not back in 2005. See id. Indeed, the largest increase
in advertisements in Prison Legal News has been for
prisoner concierge services. Tr. of Trial 73:13-:21 (Jan.
7, 2015). Unremarkably, then, the FDOC began
invoking subsection (3)(m) to censor the publication.
Not all of PLN’s evidentiary arguments are duds.
The following is largely undisputed. Florida is the only
state that censors Prison Legal News because of its
advertising content. Tr. of Trial 71:15-:20, 198-200
(Jan. 5, 2015). The private prison corporations censor
Prison Legal News only in Florida as well. Tr. of Trial
75:14-:20 (Jan. 5, 2015). Some states that previously
censored the publication because of its advertising
content have found less restrictive ways of furthering
their legitimate penological goals without banning it.
See, e.g., Tr. of Trial 81:19-82:14 (Jan. 5, 2015)
(explaining that New York staples a notice to the
magazine before delivering it to inmates warning
them that certain services are prohibited).
Other prison rules seem in tension with the
penological grounds upon which the FDOC censors
Prison Legal News. Inmates may call up to 10
numbers preapproved by the FDOC. Tr. of Trial 13:1:7 (Jan. 6, 2015). The FDOC claims that three-way
calling and call-forwarding present a security risk
because these services mask the identity and location
of the true recipient of a call. Tr. of Trial 197-200 (Jan.

App-68
5, 2015). Yet the FDOC allows inmates to list cell
phone numbers, for which it has no way of knowing
the location and identity of the person on the other
end. Id.; see also Tr. of Trial 22:5-:10 (Jan. 6, 2015).
The assignment of a cell phone number likewise does
not depend on geography. Tr. of Trial 49-50 (Jan. 6,
2015) (explaining how someone in Miami can obtain a
cell phone number with a Tallahassee area code).
Similarly, even though the FDOC has stamp-related
security concerns, it allows inmates to possess up to
40 stamps at any given time. Tr. of Trial 188:3-:4 (Jan.
5, 2015). And, as PLN stresses, there are many ways
for inmates to obtain the information advertized in
Prison Legal News despite its censorship.
These
inconsistencies
aside,
this
Court
determines that the FDOC’s stated penological
objectives for censoring Prison Legal New have been
steadfast: security, rehabilitation, and protecting the
public, FDOC staff and inmates.
C.
The FDOC’s literature review process can be
broken down into two groups. The first group consists
of incoming publications that have not previously been
rejected by the Literature Review Committee (“LRC”),
the body that reviews impoundment decisions made
by FDOC institutions. As to that group, the process
works as follows.
An issue of Prison Legal News enters an FDOC
facility or institution. Mailroom personnel initially
flag potential advertising violations. If they think the
advertising content violates the Rule, the publication
is sent to the warden or the warden’s designee (“[f]or
the purposes of approving the impoundment of

App-69
publications,” the designee is limited to the assistant
warden), who makes the impoundment decision for
the FDOC institution. Fla. Admin. Code R. 33501.401(8)(a). If that official believes the publication
violates the Rule, he or she completes “Form DC5-101,
Notice of Rejection or Impoundment of Publications.”
Id. The form is supposed to indicate the “specific
reasons” for impoundment. Id.
Several copies of this form are made. Not everyone
is entitled to a copy. Under the Rule, the inmate is
always entitled to notice whenever a copy of any
publication addressed to him or her is impounded. But
the Rule only requires that the institution that
“originated the impoundment . . . also provide a copy
of the completed form to the publisher, mail order
distributor, bookstore or sender, and to the literature
review committee.” Fla. Admin. Code R. 33501.401(8)(b). “[A] copy of the publication’s front cover
or title page and a copy of all pages cited on [the form],”
are attached to the copy sent to the LRC.15 Id.
(emphasis added).
FDOC personnel do not mark down every
offending advertisement. So the LRC never receives a
photocopy of the entire impounded publication.16 The
LRC reviews the institution’s decision—in (3)(l) cases,
Briefly, the parties dispute the burden of making a copy for
the publisher every time an FDOC facility impounds a copy of an
issue. The dispute centered on whether doing so would impose a
de minimus burden on the FDOC. This Court has considered the
evidence and now finds that making a copy for the publisher
every time would be minimally burdensome.
15

16 The FDOC does not copy the entire publication for fear that
doing so infringes copyright protections.

App-70
reviewing to see whether offending advertisement is
“prominent
or
prevalent
throughout
the
publication”—without ever knowing the number and
size of all offending advertisements in any given issue
of Prison Legal News, nor the issue’s total page count.
It may affirm or overturn the institution’s decision on
different or additional grounds. Tr. of Trial 113:20-:25,
120:20-:23 (Jan. 6, 2015). The LRC does not use Form
DC5-101 to make its decision. Tr. of Trial 120 (Jan. 6,
2015). Instead, the LRC uses a different form that it
keeps internally. Id. These internal forms have not
been provided to this Court by either party.
Once an initial impoundment decision is made,
the Rule requires all other institutions to impound the
same publication pending review by the LRC. Fla.
Admin. Code R. 33-501.401(8)(c). The initial
impounding institution is supposed to notify other
institutions of the impoundment through a centralized
database that explains why a specific publication was
impounded. This reduces duplicative efforts.
Institutions that subsequently receive the same
publication should automatically reject it on the same
grounds as the initial institution.
Group two concerns publications that have
previously been rejected by the LRC. Once the LRC
affirms an initial impoundment, it rejects the specific
issue of a publication and informs all institutions of its
decision. Future recipient institutions are then
required to reject other copies of that issue. The LRC
does not notify publishers when it upholds an
impoundment decision unless the publisher appealed
the initial impoundment decision. Tr. of Trial 86:3-:8
(Jan. 6, 2015).

App-71
D.
The FDOC has impounded every issue of Prison
Legal News since September 2009. Pursuant to its
policy, it admits not providing PLN a notice of
impoundment for every copy of each issue it has
impounded.17
The FDOC says that it has provided PLN at least
one impoundment notice per issue since 2009. As
evidence, the FDOC called two witnesses who worked
in the mailroom at Florida State Prison. Tr. of Trial
154, 180 (Jan. 7, 2015). One of them, Ms. Patricia
Goodman, has been working there since at least 2009.
Tr. of Trial 154:22-155:7 (Jan. 7, 2015). The two
witnesses are responsible for mailing out the
impoundment notices originating at Florida State
Prison. Both testified about the impoundment protocol
at their institution and how closely these procedures
are followed by mailroom staff. See, e.g., Tr. of Trial
158:5-:7 (Jan. 7, 2015). Neither could independently
recall actually sending PLN an impoundment notice
every single time. As further support, the FDOC
provided documentation of notices of impoundment
from 2009 to the present. See Def.’s Trial Ex. 5.
None of this, says PLN, demonstrates that the
FDOC provided PLN with an impoundment notice for
every issue since 2009. PLN is absolutely correct.
First, the testimonial evidence submitted by the
FDOC is limited to one of its institutions, Florida
State Prison. No one argues that Florida State Prison
was always the original impounding institution. There
17 Whether due process requires individualized notice per copy
will be discussed later.

App-72
is no evidence that the other institutions regularly
followed protocol like Ms. Goodman. Second, even for
the Florida State Prison, the witnesses admitted that
they could not recall whether they notified PLN every
time. Third, the notices of impoundment submitted
are reproductions of notices received by PLN from
prisoners, not the FDOC. See ECF No. 241, at 9-10
(explaining that the notices reproduced in Defendant’s
Trial Exhibit 5 contained PLN Bates numbers; PLN
originally disclosed these notices to the FDOC during
discovery).
This Court finds in favor of PLN on these facts.
PLN proved that it did not receive an impoundment
notice for every issue impounded since November
2009. ECF No. 241, at 9. Two of its witnesses
explained PLN’s mail protocol, credibly establishing
PLN’s meticulous recordkeeping. Tr. of Trial 252, 268
(Jan. 5, 2015). From November 2009 to June 2013, Mr.
Zachary Phillips was responsible for filing mail
concerning censorship or possible censorship of Prison
Legal News. Tr. of Trial 253:8-254:6 (Jan. 5, 2015). He
reviewed notices of rejection or impoundment from
November 2009 to May 2013. Tr. of Trial 257-263 (Jan.
5, 2015). PLN did not receive a notice of impoundment
from the FDOC for many of those months. See, e.g., Tr.
of Trial 257:13-:14 (Jan. 5, 2015) (stating that in 2010
PLN did not receive notices in May, June, July,
August, September, and October).
In summary, for 26 issues between November
2009 and December 2014, PLN did not receive any
notice from the FDOC that Prison Legal News had

App-73
been impounded.18 That is roughly 42% of all issues
during that period where the FDOC withheld Prison
Legal News without notifying PLN. ECF No. 241, at 9.
Of the notices PLN did receive, many did not list the
page numbers containing advertisements allegedly in
violation of the Rule. Id. Some did not even state the
subsection allegedly breached. Id. And at least three
times PLN received a notice of rejection without
having first received a notice of impoundment,
meaning that the LRC had made its decision before
PLN had an opportunity to appeal. Id.
Lastly, this Court finds that the FDOC failed to
provide notice every time it impounded the Prisoners’
Guerilla Handbook and the information packets sent
to its inmates by PLN. See Tr. of Trial 261-262 (Jan.
5, 2015); Tr. of Trial 4-5 (Jan. 8, 2015); Pl.’s Trial Ex.
46; Pl.’s Trial Ex. 86.
IV.
There are three principal issues to be resolved.
The first is preliminary and does not address the
merits of PLN’s lawsuit. That issue is whether the
FDOC should be judicially estopped from censoring
Prison Legal News under Rule 33-501.401(3)(l).
Resolving that issue does not completely dispose of the
case because PLN also brought an as-applied First
Amendment challenge to subsection (3)(m) of the Rule.
The two remaining issues are: first, whether the
FDOC’s censorship of Prison Legal News under Rule
33-501.401(3)(l) and (m) unconstitutionally abridges
18 This is the summary provided by PLN in its post-trial brief.
See ECF No. 241, at 9. This Court has independently reviewed
the evidence submitted at trial and agrees with the summary.

App-74
PLN’s First Amendment rights;19 and second, whether
the FDOC violated PLN’s procedural due process
rights.
A.
The preliminary question is whether judicial
estoppel bars the FDOC from censoring Prison Legal
News on the basis that its advertising content violates
Rule 33-501.401(3)(l).
The doctrine of judicial estoppel generally
“prevents a party from asserting a claim in a legal
proceeding that is inconsistent with a claim taken by
that party in a previous proceeding.” New Hampshire
v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Moore’s
Federal Practice § 134.30, p. 134-62 (3d ed. 2000)). It
is designed “to protect the integrity of the judicial
process.” Id. To that end, the doctrine, in its “simplest
manifestation[],” estops a party from asserting “a
present position because [that] party had earlier
persuaded a tribunal to find the opposite.” 18B
Charles Alan Wright et al., Federal Practice &
Procedure § 4477 (2d ed. 2015).
The Supreme Court in New Hampshire explained
that while “[t]he circumstances under which judicial
estoppel may appropriately be invoked are probably
not reducible to any general formulation of principle,”
“several factors typically inform the decision whether
to apply the doctrine in a particular case.” 532 U.S. at
750 (alteration in original) (quoting Allen v. Zurich
Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)).

19 Applied to the State of Florida by the Fourteenth
Amendment.

App-75
First, a party’s later position must be “clearly
inconsistent” with its earlier position. Second,
courts regularly inquire whether the party
has succeeded in persuading a court to accept
that party’s earlier position, so that judicial
acceptance of an inconsistent position in a
later proceeding would create “the perception
that either the first or the second court was
misled.” Absent success in a prior proceeding,
a party’s later inconsistent position
introduces no “risk of inconsistent court
determinations,” and thus poses little threat
to judicial integrity. A third consideration is
whether the party seeking to assert an
inconsistent position would derive an unfair
advantage or impose an unfair detriment on
the opposing party if not estopped.
Id. at 750-51 (citations omitted).
In this Circuit, courts consider two additional
factors. “First, it must be shown that the allegedly
inconsistent positions were made under oath in a prior
proceeding. Second, such inconsistencies must be
shown to have been calculated to make a mockery of
the judicial system.” Burnes v. Pemco Aeroplex, Inc.,
291 F.3d 1282, 1285 (11th Cir. 2002) (quoting Salomon
Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308
(11th Cir. 2001), cert. granted, judgment vacated on
other grounds, 537 U.S. 1085 (2002)). “[T]hese . . .
enumerated factors are not inflexible or exhaustive.”
Id. at 1286. And, courts have discretion in invoking
the doctrine. New Hampshire, 532 U.S. at 750. But
they “must always give due consideration to all of the
circumstances of a particular case when considering

App-76
[its] applicability.”
(emphasis added).

Burnes,

291

F.3d

at

1286

The FDOC currently maintains that the
advertisements for (3)(l) services in Prison Legal News
present a security threat, justifying the publication’s
censorship under that subsection. PLN insists that
this position is clearly inconsistent with the 2005
representation that “such ‘incidental’ ads do not pose
a significant security threat to the prisons.” Moore
Order 15. It would be different if the underlying facts
changed, but according to PLN, the only thing that has
changed is the FDOC’s “interpretation of the evidence
or its decisions on how to enforce the rules at issue.”
ECF No. 241, at 20. It points out that the percentage
of (3)(l) advertising content in Prison Legal News did
not increase significantly from 2005 to 2009, and that
no major incident or tragedy linked to (3)(l) services
occurred during that time period. The FDOC’s “flipflopping” “over the same rule and same security
concerns,” PLN claims, is precisely the sort of
inveiglement of the judiciary that judicial estoppel is
supposed to ward against.
But because circumstances have changed, the two
FDOC positions are not clearly inconsistent. First,
technology changed. In 2005, the FDOC decided not to
censor publications containing advertisements for
three-way calling and call-forwarding services
because it believed that its telephone vendor could
detect and block all such attempts. See Moore Order
14. Yet inmates have continued to bypass the FDOC’s
security measures using technology such as VoIP that
previously was not so widely available. The FDOC was
clearly mistaken about the efficacy of its security

App-77
measures. Judicial estoppel simply does not apply
“when the prior position was taken because of a good
faith mistake rather than as part of a scheme to
mislead the court.” Ryan Operations G.P. v. SantiamMidwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996).
Second, the extent to which Prison Legal News
advertizes services prohibited by (3)(l) has also
changed. PLN stresses that the proportion of the
magazine that is (3)(l) advertisement barely increased
from 9.21% in 2005 to 9.8% in 2009. To PLN, these
percentages demonstrate that in 2009 such
advertisements were no less “incidental” than they
had been in 2005. PLN thus equates “incidental” to
proportional.
A strictly proportion-based metric, however,
overlooks significant differences. For starters, Prison
Legal News ran larger ads in 2009. A chart submitted
by the FDOC tallies the number of “half page or
greater” (3)(l) ads. Def.’s Trial Ex. 7. From April 2005,
the last issue censored in the previous litigation, to
September 2009, the number of such ads increased by
100%, from 2 to 4. Id. at 1. That number rose even
more, now hovering around 6 per issue. Id. at 3. So
while the overall proportion of (3)(l) advertisement
had not increased significantly in 2009, the number of
larger, more conspicuous ads did.
The magazine also shifted away from advertising
three-way calling services to advertisements enabling
inmates to purchase products or services with postage
stamps. By PLN’s own account, the number of these
so-called “stamp” advertisements went from 2 in April
2005 to 7 in September 2009. Compare Pl.’s Trial Ex.
79, at 17-18, with id. at 43-44. That number has

App-78
steadily ticked upward: 8 by November 2009; 9 in
February 2010; 10 in March 2010; a slight decrease
before rebounding to 11 in July 2010; 13 by August
2010; peaking at 17 in March 2013; and steadying at
the lower end of the teens ever since. Id. at 44-84.
Advertisements for three-way calls have not seen this
growth, but they have not decreased either. Id.
Although PLN argues that the overall percentage of
(3)(l) advertisements has not changed much,20 the
magazine clearly emphasizes a different type of (3)(l)
ad today than it did in 2005.
The most obvious shortcoming with equating
“incidental” to proportional is that it misses the
absolute increase of advertisements for services
prohibited by (3)(l). See id.; Def.’s Trial Ex. 7. Perhaps
a 10-page publication with one page of advertisement
is functionally equivalent to a 100-page publication
with ten pages of advertisement. This Court, however,
refuses to supplant FDOC officials’ judgment on
whether one of these equally proportionate, but
qualitatively different publications presents any more
of a security risk than the other. See Jones v. N.
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119,
125 (1977) (admonishing the lower court for “not
giving appropriate deference to the decisions of prison
administrators and appropriate recognition to the
peculiar and restrictive circumstances of penal
confinement”).

20 This is not actually true. The overall percentage in 2005 was
9.21%. Pl.’s Trial Ex. 79, at 85. By 2011 that number had gone up
to 10.19%. Id. It hit 12.66% in 2012, and now hovers above 15%.
Id.

App-79
All of these changes to the content and format of
Prison Legal News matter for judicial estoppel. PLN
paints the FDOC’s representations in 2005 as a
blanket promise that Prison Legal News would never
again be censored for advertising services prohibited
by (3)(l). But that is not what the Moore Order
articulates. The FDOC represented that “such
‘incidental’ ads” did not pose a security threat. Moore
Order 15 (emphasis added). This is a direct reference
to the advertising content at issue in that case. See
Black’s Law Dictionary 1661 (10th ed. 2014) (defining
“such” as “That or those; having just been
mentioned”). By limiting its representation, the
FDOC’s promise cannot fairly be read as extending to
all future iterations of such advertisements,
particularly those different in kind.
Furthermore, the Moore Order itself reflects the
limited finding that the FDOC had promised not to
impound Prison Legal News “in its current format.”
Moore Order 21 (emphasis added). The Eleventh
Circuit reiterated this understanding on appeal.
McDonough, 200 F. App’x at 878 (“The FDOC
demonstrated that its current impoundment rule does
allow for distribution of PLN in its current format.”)
(emphasis added). The format changed in four years.
It has changed even more since then. Consequently,
the FDOC’s current position is not clearly inconsistent
with the position it took before Judge Moore, and this
Court’s acceptance of that position would not “create
the perception that . . . the first . . . court was misled.”
New Hampshire, 532 U.S. at 750-51.
Accordingly, the FDOC is not judicially estopped
from adopting the current position that Prison Legal

App-80
News must be censored because its (3)(l) advertising
content presents a security risk.21
B.
This Court must also decide whether the FDOC’s
censorship of Prison Legal News pursuant to Rule 33501.401(3)(l) and (m) violates PLN’s rights under the
First Amendment.
PLN has a legitimate First Amendment interest
in accessing prisoners “who, through subscription,
willingly seek [the] point of view” expressed in Prison
Legal News. Thornburgh v. Abbott, 490 U.S. 401, 408
(1989). Prison regulations limiting that access must be
analyzed under the reasonableness standard
developed by the Supreme Court in Turner v. Safley,
482 U.S. 78 (1987). Thornburgh, 490 U.S. at 413-14
(holding that regulations affecting the sending of a
“publication” to a prisoner must be analyzed under
Turner; refusing to distinguish between incoming
correspondence from prisoners and incoming
correspondence
from
nonprisoners);
accord
Washington v. Harper, 494 U.S. 210, 224 (1990)
(“[T]he standard of review we adopted in Turner
applies to all circumstances in which the needs of
The FDOC additionally contends that judicial estoppel does
not apply against states when doing so would “compromise a
governmental interest in enforcing the law” and “where broad
interests of public policy [are] at issue.” ECF No. 242, at 4-5
(quoting New Hampshire, 532 U.S. at 755-56). It argues this case
implicates both concerns. First, estoppel would compromise the
FDOC’s interest in enforcing prison safety rules. Second, broad
interests of public safety and prison security are at issue. PLN
responds that neither interest is at play in this litigation. This
Court need not decide this issue because it finds that the totality
of the circumstances counsel against judicial estoppel.
21

App-81
prison administration implicate constitutional
rights.”); Perry v. Sec’y, Florida Dep’t of Corr., 664 F.3d
1359, 1365 (11th Cir. 2011). Under Turner, such
regulations are “valid if [they are] reasonably related
to legitimate penological interests.” Thornburgh, 490
U.S. at 413 (alteration in original) (quoting Turner,
482 U.S. at 89).
Several factors are relevant to the reasonableness
inquiry. The first factor is multifold, requiring courts
to “determine whether the governmental objective
underlying the regulations at issue is legitimate and
neutral, and that the regulations are rationally
related to that objective.” Id. at 414. This “‘factor’ is
more properly labeled an ‘element’ because it is not
simply a consideration to be weighed but rather an
essential requirement.” Salahuddin v. Goord, 467
F.3d 263, 274 (2d Cir. 2006); accord Shaw v. Murphy,
532 U.S. 223, 229-30 (2001) (“[After stating the first
Turner factor:] If the connection between the
regulation and the asserted goal is ‘arbitrary or
irrational,’ then the regulation fails, irrespective of
whether the other factors tilt in its favor.”).
A second factor “is whether there are alternative
means of exercising the right that remain open to [the
plaintiff].” Turner, 482 U.S. at 90. “A third
consideration is the impact accommodation of the
asserted constitutional right will have on guards and
other inmates, and on the allocation of prison
resources generally.” Id. Finally, Turner instructs
lower courts to inquire whether there are “easy
alternatives” indicating that the regulation is not
reasonable, but rather an “exaggerated response” to
prison concerns. Id.

App-82
After the impinged constitutional right has been
identified, as is the case here, the state must “put
forward” the legitimate governmental interests
underlying its regulation. Id. at 89. Once this is done,
the plaintiff bears the ultimate burden of showing that
the regulation in question, as applied, is not
reasonably related to legitimate penological
objectives. Overton v. Bazzetta, 539 U.S. 126, 132
(2003) (“The burden, moreover, is not on the State to
prove the validity of prison regulations but on the
[plaintiff] to disprove it.”).
The FDOC identified public safety and prison
security as the underlying legitimate governmental
interests.22 No one questions whether those are
legitimate governmental interests. Any suggestion to
the contrary would be fruitless. See Thornburgh, 490
U.S. at 415 (holding that regulation promulgated with
the purpose of “protecting prison security” is
legitimate, since that “purpose . . . is central to all
other corrections goals”); Perry, 664 F.3d at 1366
(acknowledging that “protecting the public and
ensuring internal prison security” are legitimate
penological interests).
PLN instead contends that the FDOC’s
application of Rule 33-501.401(3)(l) and (m) is not
content-neutral, and that censoring Prison Legal
News for its advertising content is not rationally
related to public safety and prison security. And so,
with respect to the first factor, the question becomes
(1) whether the Rule “operate[s] in a neutral fashion,
22 It identified other reasons too, but only the security
objectives are necessary for this analysis.

App-83
without regard to the content of the expression” at
issue; and (2) whether censoring Prison Legal News
due to its advertising content rationally relates to
public safety and prison security. Turner, 482 U.S. at
90.
As to neutrality, the Supreme Court has
explained that Turner requires nothing more than
that “the regulation or practice in question must
further an important or substantial governmental
interest unrelated to the suppression of expression.”
Thornburgh, 490 U.S. at 415 (quoting Procunier v.
Martinez, 416 U.S. 396, 413 (1974)). “Where . . . prison
administrators
draw
distinctions
between
publications solely on the basis of their potential
implications for prison security, the regulations are
‘neutral’ . . . .” Id. at 415-16.
The limited evidence at trial reveals that the
FDOC censors an assorted mix of publications under
subsections (3)(l) and (m). Nothing in the record
implies that such censorship turns on the content of
the publication. PLN did not show, for instance, that
the FDOC disparately censors publications critical of
its institutions.
Lacking this evidence, PLN argues that FDOC
administrators did not amend the Rule in 2009 on
legitimate penological grounds. PLN alleges, citing a
series of emails, that the true motivation behind the
amendment was a dislike of Prison Legal News. See
Pl.’s Trial Ex. 57a-57i.
“It is unclear what role, if any, motive plays in the
Turner inquiry.” Hatim v. Obama, 760 F.3d 54, 61
(D.C. Cir. 2014). Compare Hammer v. Ashcroft, 570
F.3d 798, 803 (7th Cir. 2009) (“It is not clear why one

App-84
bad motive would spoil a rule that is adequately
supported by good reasons. The Supreme Court did
not search for ‘pretext’ in Turner; it asked instead
whether a rule is rationally related to a legitimate
goal.”) (citation omitted), with Salahuddin, 467 F.3d
at 276-77, and Quinn v. Nix, 983 F.2d 115, 118 (8th
Cir. 1993) (“Prison officials are not entitled to the
deference described in Turner and Procunier if their
actions are not actually motivated by legitimate
penological interests at the time they act.”). In this
case, the contours of that role need not be delineated
because “[e]ven if some quantum of evidence of an
unlawful motive can invalidate a policy that would
otherwise survive the Turner test,” the evidence
introduced by PLN is “too insubstantial to do so.”
Hatim, 760 F.3d at 61; see also Prison Legal News v.
Stolle, No. 2:13CV424, 2014 WL 6982470, at *6 n.2
(E.D. Va. Dec. 8, 2014) (rejecting applicability of
motive and holding, in the alternative, that PLN failed
to present sufficient evidence of “unlawful motive”
that could “invalidate a policy that would otherwise
survive the Turner test”). As previously explained, the
emails simply do not evidence unlawful animus on the
part of FDOC administrators. Neither does the other
circumstantial evidence. PLN thus failed to show that
the FDOC applies Rule 33-501.401(3)(l) and (m) in a
biased fashion.
Setting neutrality aside, this Court now turns to
the gravamen of PLN’s First Amendment challenge.
PLN advances three principal reasons for why there is
no rational connection between the censorship at issue
and the stated penological objectives.

App-85
The first argument boils down to a dispute about
the evidentiary burden necessary to establish a
“rational” connection. Everyone, even PLN’s expert,
agrees that the underlying services addressed in Rule
33-501.401(3)(l) and (m) unquestionably compromise
public safety and prison security. See, e.g., Tr. of Trial
68-69 (Jan. 8, 2015) (summarizing how even PLN’s
expert agrees that the underlying services
compromise security); Tr. of Trial 203:9-:15 (Jan. 5,
2015) (admitting that “[those services raise] very
legitimate concerns”). This is why the FDOC forbids
prisoners from using them.
But PLN says that evidence that prohibiting the
use of these services furthers security is not enough.
This case, PLN insists, is not about those services.
This case is about censoring a publication because it
advertizes those services. That is correct. Even so, the
FDOC also articulated a logical connection between
censorship and the penological objectives at stake, and
presented sufficient evidence in support.
The logic is straightforward. Without question,
the proper, initial response to the dangerous services
is forbidding prisoners from using them. Though not
surprisingly, they do so anyway. Tr. of Trial 241-243
(Jan. 7, 2015). See generally Washington, 494 U.S. at
225 (“[A] prison environment, . . . ‘by definition,’ is
made up of persons with ‘a demonstrated proclivity for
antisocial criminal, and often violent, conduct.’”
(quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))).
So the FDOC has adopted prophylactic safeguards in
addition to bare proscription.
Rule 33-501.401 is such a safeguard.
Advertisements compromise security because they

App-86
convert a publication into a “one-stop shop”—to
borrow from the FDOC’s expert—for dangerous
services. Tr. of Trial 71-72:15 (Jan. 8, 2015). By
limiting inmates’ exposure, the Rule seeks to reduce
the likelihood that inmates will use those services.
PLN responds that such “general or conclusory”
articulation of rationality is insufficient to withstand
constitutional muster. Tr. of Trial 64:17 (Jan. 8, 2015).
This Court agrees, “Turner requires prison authorities
to show more than a formalistic logical connection
between a regulation and a penological objective.”
Beard v. Banks, 548 U.S. 521, 535 (2006). The FDOC
met that burden by providing the testimony of several
administrators who, “relying on their professional
judgment, reached an experience-based conclusion
that [censorship] . . . further[s] [the] legitimate prison
objectives.” Id. at 533 (emphasis added); see also
Prison Legal News v. Livingston, 683 F.3d 201, 216
(5th Cir. 2012) (“[P]rison policies may be legitimately
based
on
prison
administrators’
reasonable
assessment . . . .”) (emphasis added). And, as
additional support, the FDOC provided “expert
testimony to establish that [censorship] will help curb”
prisoners’ use of the services. Perry, 664 F.3d at 1366
(holding that expert testimony is sufficient to
establish rational connection; deferring to the opinion
of FDOC administrator James Upchurch, who is also
a witness in this case).
None of this suffices for PLN. It wants specific
past incidents. And not merely some past example of
an inmate using a prohibited service to do something
bad; PLN demands a concrete, unfortunate incident
caused by an inmate using a banned service, which the

App-87
inmate learned about in Prison Legal News. See, e.g.,
Tr. of Trial 66:2-:8 (Jan. 8, 2015).
No controlling precedent in this Circuit requires
the FDOC to provide evidence of an actual, past
incident. See, e.g., Perry, 664 F.3d at 1363 (affirming
summary judgment in favor of the FDOC on First
Amendment challenge to prison regulation despite
fact that the FDOC failed to cite specific instances of
the alleged problem in Florida). Several other circuits
likewise do not require it. See, e.g., Murchison v.
Rogers, 779 F.3d 882, 890 (8th Cir. 2015) (“[P]rison
officials need not wait until particular prohibited
material causes harm before censoring it . . . .”);
Livingston, 683 F.3d at 216 (“[P]rison policies may be
legitimately based on prison administrators’
reasonable assessment of potential dangers.”). But
even if such evidence were required, FDOC
administrators provided examples, both in Florida
and throughout the country, of problems associated
with specific services that advertize, or have
advertized, in Prison Legal News. See, e.g., Tr. of Trial
5-6, 39-41 (Jan. 6, 2015) (explaining that FDOC
officials learned of a company that had been sending
prisoners money for stamps, and how such companies
could distribute money for prisoners to people in the
outside world in exchange for stamps; this company
had previously advertized on Prison Legal News).
PLN’s second reason is that the FDOC applies the
Rule arbitrarily. PLN introduced evidence of identical
issues of Prison Legal News censored at separate
FDOC facilities on different grounds, as reflected on
the
impoundment
notice
accompanying
the
censorship. There is also some testimony about issues

App-88
that were initially admitted at some facilities while
denied at others. Lastly, PLN stresses that
advertisements for other prohibited services and
products are not censored by the FDOC. PLN
maintains that these inconsistencies amount to an
irrational application of the Rule.
Case law supports the proposition that the
consistency with which a regulation is applied matters
for determining whether it is rationally connected to a
legitimate penological objective. “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.” Murchison, 779 F.3d at 890 (emphasis
added). In addition to inconsistent censorship of
“similar” material, general “inconsistencies could
[also] become so significant that they amount to a
practical randomness that destroys the relationship
between a regulation and its legitimate penological
objectives.” Id. (quoting Livingston, 683 F.3d at 221);
see also Thornburgh, 490 U.S. at 417 n.15.
Although PLN has presented evidence of
inconsistent censorship decisions made by FDOC
mailroom staff, this Court does not believe PLN
demonstrated inconsistencies that rise to a level of
randomness or that undermine the rationale for
censoring Prison Legal News. The fact that mailroom
personnel do not uniformly censor Prison Legal News
on the same grounds is not dispositive. “With the
volume of material that must be screened, we cannot
expect prison officials to perfectly screen all material
that violates prison regulations.” Murchison, 779 F.3d

App-89
at 890. Inconsistent application by mailroom staff goes
more to the vagueness of the Rule.
In any event, mailroom staff decisions are not
final and do not permanently compel censorship of the
magazine throughout Florida. Initial impoundment
decisions are subject to review by the LRC. The LRC
rejects the publication on the grounds it thinks
adequate. That decision is then uniformly applied
throughout Florida because once the LRC makes a
decision, there is no further individualized review by
mailroom staff.
This pares down the risk of randomness and
distinguishes this case from Thornburgh,23 where
each prison warden independently decided censorship,
such that “certain federal prisons had excluded the
very same book that others had allowed.” Livingston,
683 F.3d at 221. Here, the very same issue of Prison
Legal News is eventually censored throughout the
FDOC. Like in Livingston, the LRC’s “system-wide”
“exclusion decisions” make the inconsistencies “only
arguable,” because the only apparent inconsistencies
left to sort out are the decisions to admit, for example,
an advertisement about guns versus one about threeway calling. Id. This Court refuses to engage in such
“one-to-one comparisons” of specific ads. Id. Not
because these inconsistencies are irrelevant. But
rather, due to the substantial deference owed prison

Yet, even the inconsistencies in that case did not defeat an
otherwise rational connection. Thornburgh, 490 U.S. at 417 n.15
(addressing the “seeming inconsistencies” in that case and
holding that the regulation at issue struck “an acceptable
balance” between uniformity and individualized review).
23

App-90
administrators regarding which type of advertisement
is more problematic.
Absent a showing that the FDOC is admitting
other magazines containing advertisements closely
resembling those found in Prison Legal News, which
there is none, this Court holds that the “limited
amount of inconsistency at the margins of [the
FDOC’s] exclusion decisions is not enough to defeat
the reasonableness of [the FDOC’s] practices.” Id.
The last argument PLN advances is that other
FDOC regulations undermine the Rule to such a great
extent that they render the Rule’s connection to
security irrational. To illustrate, among the many
such rules explored at trial is a regulation permitting
inmates to list cell phone numbers on their
preapproved contact list and another allowing
inmates up to 40 stamps at any given time. See Tr. of
Trial 22:5-:10 (Jan. 6, 2015); Tr. of Trial 188:3-:4 (Jan.
5, 2015). PLN asserts that these rules undermine the
logic behind censoring some of the services singled out
in (3)(l). Cell phones have three-way calling and callforwarding capabilities identical to, or better than, the
services advertized on Prison Legal News. The FDOC
has no way of knowing a cell phone user’s location, just
like it does not know the location of the person on the
other end of a forwarded call. Tr. of Trial 197 (Jan. 5,
2015); Tr. of Trial 22:5-:10 (Jan. 6, 2015). Also, the
FDOC allows inmates to have stamps and allows
families to send inmates stamps despite their
contention that they are a serious hazard in prisons.
See Tr. of Trial 188:3-:4 (Jan. 5, 2015).
An FDOC administrator explained each
conflicting rule. Cell phones are ubiquitous in modern

App-91
society. Prohibiting inmates from calling cell phones
would effectively preclude them from speaking with
many of their loved ones who no longer carry land
lines. The FDOC could theoretically impose such a
draconian rule, but it would surely lead to increased
tension within prisons. See Tr. of Trial 102-103 (Jan.
7, 2015) (summarizing practical impossibility).
Likewise, the FDOC once proposed a rule that
would have embargoed stamps sent by family
members to an inmate by mail. Tr. of Trial 23 (Jan. 6,
2015). Under the proposed rule, families would have
been limited to depositing money into inmates’ prison
accounts which the inmate could then use to purchase
stamps. Families and friends of prisoners vehemently
opposed the proposal, expressing concern that the rule
would increase the likelihood that their imprisoned
loved ones would either be victimized or simply not
purchase any stamps at all. Tr. of Trial 23-24 (Jan. 6,
2015). Moreover, FDOC officials testified that
implementing the accounting measures proposed by
PLN to counteract the problems with stamps would be
too costly and require amending state statutes. Tr. of
Trial 25 (Jan. 6, 2015). Nearly every other seemingly
paradoxical regulation in place also had some
corresponding explanation.
Running a prison system is not easy. Prison
administrators, charged with the unenviable task of
“deal[ing] with the difficult and delicate problems of
prison management,” must make considered decisions
that balance order, security and resources.
Thornburgh, 490 U.S. at 407-08. The first Turner
factor requires this Court to determine whether the
censorship at issue is rationally related to legitimate

App-92
penological objectives. Finding that it is both rational
and supported by evidence, this Court declines PLN’s
invitation to disrupt the balance struck by the FDOC.
The remaining factors tilt in the FDOC’s favor as
well. When considering whether alternative means of
exercising the abridged right remain open to the
plaintiff, the Supreme Court instructs courts to view
“‘the right’ in question . . . sensibly and expansively.”
Id. at 417. This means that the alternatives need not
be perfect substitutes. Livingston, 683 F.3d at 218.
The Rule leaves open sufficient alternatives for
PLN to express their point of view to inmates. First,
as in Perry, the Rule does not completely prevent PLN
from corresponding with inmates. 664 F.3d at 1366.
There are countless other written materials that PLN
may send prisoners. As the Fifth Circuit in Livingston
explained, if alternative means existed in O’Lone v.
Estate of Shabazz, 482 U.S. 342 (1987), “where
prisoners were cut off from [a] unique and
irreplaceable
[activity]”—“a
unique
religious
ceremony”—surely there are alternatives to a
magazine. 683 F.3d at 219.
Second, even Prison Legal News is not invariably
censored. The Rule applies only when a particular
issue’s advertising content crosses a certain
threshold.24 And while this Court accepts that
advertisements are necessary, the unfeasibility of
printing Prison Legal News without advertising
content is not dispositive. PLN has not proven that it
24 This threshold, however, is almost impossible to identify. As
this Court will explain shortly, vagueness is principally
responsible for the Rule’s disparate application.

App-93
is unable to adopt advertising rubrics that would help
bring its magazine in line with prison regulations.
The third factor is the impact the accommodation
of the asserted constitutional right will have on
guards, inmates and prison resources. In this case,
“the class of publications” excluded by the Rule “is
limited to those found potentially detrimental to order
and security.” Thornburgh, 490 U.S. at 418. The
evidence demonstrates that accommodating the
specific way in which PLN seeks to exercise its right—
through a publication containing dangerous amounts
of advertising content—would “significantly less[en]
liberty and safety for everyone else, guards and other
prisoners alike.” Id. The Supreme Court has held that
this fact alone pushes the third factor in FDOC’s favor.
Id. (deferring to the “informed discretion of corrections
officials” who had said that accommodating the right
would lessen liberty and safety for “everyone else,
guards and other prisoners”).
The final Turner factor is whether there are “easy
alternatives” indicating that the regulation is not
reasonable, but rather an “exaggerated response” to
prison concerns. 482 U.S. at 90. This is not an inquiry
into whether prison officials adopted the “least
restrictive alternative.” Id. at 90-91. “But if an inmate
claimant can point to an alternative that fully
accommodates the prisoner’s rights at de minimis cost
to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy
the reasonable relationship standard.” Id. at 91.
As this Court explained during its discussion of
rationality, there are no “easy alternatives” available
to the FDOC. The prohibition against using the

App-94
services themselves is not enough. Similarly, the
alternatives suggested by PLN to eliminate the
security concerns either have equally unattractive
side effects or are costly to implement.
Additionally, with respect to subsection (3)(l),
“[a]lthough the FDOC did not need to narrowly tailor
its Rule to only prohibit” publications containing
“prominent or prevalent” offending advertisements, it
adopted a less exaggerated response than censorship
for any amount of offending advertising content.
Perry, 664 F.3d at 1367. And as to subsection (3)(m),
this Court is “comforted by the individualized nature
of the determinations required by the regulation,”
under which a publication is censored only if the LRC
determines that it “presents a threat to the security,
order or rehabilitative objectives of the correctional
system or the safety of any person.” Thornburgh, 490
U.S. at 416.
Admittedly, the fact that Florida is the only state
that currently censors Prison Legal News for its
advertising content is troubling—at least for purposes
of determining whether the Rule is indeed an
exaggerated response. Some states have censored the
publication for its advertising content. New York once
censored it for carrying advertisements about services
accepting stamps as payment. Tr. of Trial 81-82 (Jan.
5, 2015). New York eventually settled on a less
restrictive way of furthering its security interest
without censoring the entire magazine: attaching a
notice warning prisoners that the services advertized
are prohibited. Id. Even if this is the sounder policy,
the FDOC is not required to implement the least
restrictive regulation. Moreover, the FDOC may be

App-95
constrained in ways that New York’s department of
corrections is not. Significant variances would make
comparison futile. Comparing different states’
department of corrections is difficult, and in this case
the parties did not submit sufficient evidence to do so.
This Court is also not blind to the many other
worrisome facts uncovered at trial. The most
disconcerting is the Rule’s vagueness. None of the
witnesses at trial were able to articulate any
reasonably specific guidelines to determining when
advertisements were “prominent or prevalent.” Some
considered whether font was large and bolded to
determine prominence. Others looked to the size of the
advertisements. For prevalence, no one could identify
a cutoff. With no framework handy, this Court would
probably be unable to apply the Rule to those
publications at the margins. Yet FDOC officials felt
very strongly about their ability to determine
prominence and prevalence correctly. It seems that
they, unlike this Court, “know it when [they] see it.”
Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964)
(Stewart, J., concurring).
To make matters worse, the LRC, the final
decision-maker, never reviews an entire publication or
book when it makes its decision. As this Court
mentioned
earlier,
this
means
that
final
determinations about prevalence are made without
knowing whether, for instance, the four or five pages
copied and attached to the impoundment notice are
four or five out of one hundred, one thousand.
That being said, there is no void-for-vagueness
claim pending. This lawsuit instead focuses on
whether the FDOC has applied subsections (3)(l) and

App-96
(m) to Prison Legal News in a manner reasonably
related to legitimate penological interests. Courts
have wrestled with the role played by general
vagueness in the Turner analysis. See Martinez v.
Fischer, No. CIV S-10-0366 GGH P, 2011 WL 4543191,
at *8 n.4 (E.D. Cal. Sept. 28, 2011) (“[T]he undersigned
has trouble fitting the Turner test, an analysis focused
on the legitimacy of prison regulations, with an
analysis focused on whether regulations are
understandable.”); Miller v. Wilkinson, No. 2:98-CV275, 2010 WL 3909119, at *5 (S.D. Ohio Sept. 30,
2010) (noting that “[p]rison regulations are not often
challenged on vagueness grounds” and that some
courts have held that “the First Amendment
overbreadth doctrine, do not ‘apply with independent
force in the prison-litigation context’ ” (quoting
Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.
1999))); Bahrampour v. Lampert, 356 F.3d 969, 975-76
(9th Cir. 2004) (applying Turner test despite inmate’s
assertion that vagueness and overbreadth claims
must be considered separate and apart from
application of Turner test.); cf. Sweet v. McNeil, No.
4:08CV17-RH/WCS, 2009 WL 903291, at *7 (N.D. Fla.
Mar. 31, 2009) (Hinkle, J.) (importing deferential
principles to void-for-vagueness suit, in light of
Turner).25
PLN does not argue that the Turner analysis entirely
subsumes the void-for-vagueness inquiry. Moreover, PLN moved
to amend their complaint to add a void-for-vagueness claim. This
implies that PLN also thinks that the two claims are separate
and distinct. In addition, there has not been any argument on the
issue of whether void-for-vagueness and overbreadth claims
apply with independent force in the prison context. This Court
accordingly treats them as separate claims.
25

App-97
In this case, all Turner factors support the FDOC.
This includes the last one, where, instead of banning
any amount of offensive advertisement, the FDOC
elected the less restrictive option of allowing
publications with some advertising content. The
difficulty of applying the more reasonable option
should not, and does not, overcome the other Turner
factors. The uniformity with which the publication has
been rejected by the LRC, both at the time and after
re-reviewing the censored issues in preparation for
trial, further alleviates the concern that the Rule
cannot be applied intelligibly. Finally, the Rule here
seems equally as difficult to apply as the one in
Thornburgh, but that did not preclude a finding in the
government’s favor. See 490 U.S. at 428 (Stevens, J.,
concurring in part and dissenting in part) (addressing
the regulation’s vagueness).
This Court therefore holds that PLN has failed to
show that the FDOC’s censorship of Prison Legal
News is not “reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89.
C.
The final issue is whether the FDOC violated
PLN’s due process rights in its impoundment of Prison
Legal News, the Prisoners’ Guerilla Handbook and the
information packets sent to FDOC inmates.
The “decision to censor or withhold delivery of a
particular [publication],” such as Prison Legal News,
“must be accompanied by minimum procedural
safeguards.”26 Procunier, 416 U.S. at 417. Under
26 Procunier addressed the due process afforded prisoners and
their correspondents when exchanging letters. Circuit courts

App-98
Procunier, those safeguards are: (1) notifying the
intended recipient-inmate; (2) giving the author of the
publication a reasonable opportunity to protest the
decision; and (3) referring complaints about the
decision to a prison official other than the person who
originally disapproved the correspondence.27 Id. at
418-19.
PLN claims that the current review process
violates Procunier because only the institution that
initially impounds an issue of Prison Legal News is
required to provide the publisher notice. Publishers,
PLN argues, are entitled to notice every time a copy of
an issue is impounded. This is so even if later
have extended the due process safeguards to magazine
publishers. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th
Cir. 2004); Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th
Cir. 1996). They have held that a publisher’s right to due process
does not depend on notifying the inmate. Jacklovich, 392 F.3d at
433-34.
The FDOC seems to have abandoned its argument that
Mathews v. Eldridge applies. 424 U.S. 319 (1976). Even if
Eldridge did apply, see Perry, 664 F.3d at 1368, it would similarly
require of the FDOC the same procedural safeguards this Court
sets forth in this order. “The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and
in a meaningful manner.” Eldridge, 424 U.S. at 333. A
“meaningful manner” presupposes that the deprived party be
provided with the information necessary to mount a meaningful
challenge to the deprivation. In this case, that means informing
PLN of the distinct, independent bases upon which its magazine
has been impounded. Sharing this information is critical to
reducing the risk of erroneous deprivation. Testimony about the
ease of making additional copies suggests that the costs of
implementation are minimal. The upshot of doing so benefits the
government’s interest in due process of law and ensures that PLN
has a meaningful opportunity to contest the deprivation.
27

App-99
impoundment
decisions
duplicate
earlier
determinations. The FDOC responds that since all
issues of Prison Legal News are alike, PLN is only
entitled to one notice per issue.
Neither party properly demarks the requirements
of due process. Procunier demands that the publisher
“be given a reasonable opportunity to protest” the
censorship. Id. at 18 (emphasis added). For an
opportunity to be reasonable, the publisher must
know of the grounds upon which the publication has
been censored. See Henry J. Friendly, “Some Kind of
Hearing”, 123 U. Pa. L. Rev. 1267, 1280 (1975)
(explaining that it is “fundamental” to due process
that “notice be given . . . that . . . clearly inform[s] the
individual of the proposed action and the grounds for
it”). This knowledge component of due process does not
turn on whether the publication is the first copy or a
subsequent copy. What matters is the basis for
censorship. If a subsequent impoundment decision is
based on a different reason not previously shared with
PLN, due process requires that PLN be told of this
new reason.
The FDOC’s current policy of providing notice
once per issue should theoretically satisfy this
formulation. Under the Rule, once one institution
impounds an issue of Prison Legal News, a later
institution must automatically impound that same
issue pending a final rejection determination by the
LRC. Fla. Admin. Code R. 33-501.401(8)(c). The
subsequent institution learns of the first institution’s
reasons for impoundment through a centralized
database. It must then inform its inmate of “the
specific reasons why the publication was impounded.”

App-100
Id. (emphasis added). That is, the later institution
must inform the prisoner of the initial institution’s
reasons for impoundment.
The succeeding, perfunctory impoundment
amounts to “routine enforcement of a rule with
general applicability” because it does not raise new
grounds for censorship. Livingston, 683 F.3d at 223.
The initial reasons for impoundment having been
communicated to PLN, this ordinarily would not
require additional notice.
Despite this mechanism, PLN has at times
received multiple notices impounding a specific issue
of Prison Legal News on different grounds. PLN
expresses uncertainty as to how this happens, since
the Rule requires future institutions to replicate the
first institution’s reasoning. ECF No. 241, at 12 n.10.
One explanation is that sometimes multiple
institutions receive the same issue of Prison Legal
News simultaneously. When that happens, each
institution thinks of itself as an initial impounding
institution. In that scenario PLN should receive a
notice per initial impounding institution. But the
moment these simultaneous, initial impoundment
decisions are disseminated throughout the FDOC,
later institutions should cease providing independent
grounds for exclusion.
Another explanation is that the Rule is not always
followed. And as a result a subsequent impoundment
is not perfunctory, but rather the product of an
independent determination. See, e.g., ECF No. 241, at
11-12 (summarizing evidence). Worse, FDOC has at
times completely failed to inform PLN of an
impoundment decision, only notifying PLN of a

App-101
rejection. This means that by the time PLN received
notice, the LRC had already reviewed the initial
impounding institution’s decision.
The FDOC claims that even if its employees failed
to send PLN impoundment notices, it cannot be held
liable because the failure is merely negligent. It cites
Daniels v. Williams, 474 U.S. 327 (1986), and
Davidson v. Cannon, 474 U.S. 344 (1986), in support
of the argument that “the Due Process Clause is
simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or
property.” Daniels, 474 U.S. at 328. PLN, in response,
contends that Daniels only holds that the substantive
deprivation must be caused by conduct beyond mere
negligence. According to PLN, the failure to provide
notice—that is, the process itself—gives rise to
liability, even if the employee only negligently failed
to do so.
There seems to be a circuit split on the issue of
whether Daniels is limited to the substantive
deprivation or whether it extends to the process itself.
In Dale E. Frankfurth, D.D.S., v. City of Detroit, the
plaintiff brought an action under § 1983 for damages
resulting from the demolition of a building he owned.
Nos. 86-1476, 86-1825, 1987 WL 44769, at *1(6th Cir.
Sept. 17, 1987). The Sixth Circuit, citing Daniels, held
that the plaintiff’s “failure to receive notice was due to
the negligent act of a clerk. Because the act was
negligent, no fourteenth amendment deprivation is
involved and there is no constitutional need to provide
a remedy.” Id. at *3; accord Brunken v. Lance, 807
F.2d 1325, 1331 (7th Cir. 1986) (“[Daniels] teaches
that an official does not ‘deprive’ a person of life,

App-102
liberty, or property, within the meaning of the
Fourteenth Amendment, when an official’s negligent
act causes the unintended loss of or injury to life,
liberty, or property. . . . Given this evidence, [the
defendant’s] failure to notify [the plaintiff] was at
most negligent.”).
In contrast, the Third Circuit in Sourbeer v.
Robinson limited Daniels to the substantive
deprivation. 791 F.2d 1094, 1104-05 (3d Cir. 1986). In
so doing, it summarized the distinction well:
Cases such as Davidson, dealing with a state
of mind requirement for § 1983/due process
actions, relate only to the highly unusual
circumstance where the deprivation of life,
liberty, or property the case is predicated
upon was not intentional, as opposed to where
the failure to provide adequate process was
not intentional. For example, in Davidson
prison guards negligently failed to take action
to protect one prisoner who was threatened
by another, allegedly “depriving” him of a
liberty
interest
in
being
free
of
assaults. . . . In [Daniels] it was alleged that
a correctional deputy had negligently left a
pillow on a stairway, causing the plaintiff to
slip and thereby “depriving” him of a liberty
interest. These cases, it is readily apparent,
are of a highly unusual nature—the
defendants had probably not even been aware
until after the fact of the “deprivations” that
would trigger due process concerns. “To hold
that injury caused by such conduct is a
deprivation within the meaning of the

App-103
Fourteenth Amendment would trivialize the
centuries-old principle of due process of law.”
Here, in contrast, the keeping of Sourbeer in
administrative custody—depriving him of
liberty—was itself an intentional act. That
being the case, it was not necessary for the
district court to make any other state of mind
finding. We know of no authority for the
proposition that an intentional deprivation of
life, liberty or property does not give rise to a
due process violation because the failure to
provide due process was without fault.
Id. (citations omitted). As far as this Court or the
parties can tell, the Eleventh Circuit has not spoken
on the issue.
This Court believes that the Third Circuit has the
better-reasoned opinion. This is particularly true here,
where the relief sought is declaratory and injunctive.
Even supposing that the “fault” associated with past
failures matters for recovering damages against the
government, an injunction pivots on the “independent
legal right . . . being infringed.” Alabama v. U.S. Army
Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir.
2005). The right in this case implicates “the most
rudimentary demands of due process of law”—notice.
Armstrong v. Manzo, 380 U.S. 545, 550 (1965). Just
because past failures were the product of negligent
conduct does not absolve the FDOC of its
constitutional obligation to provide notice going
forward.
In any event, PLN has shown that the FDOC’s
failure to provide notice exceeded negligence. The
systemic failure of FDOC personnel to provide notice

App-104
42% of the time reveals that the failures were not
coincidental. The high failure rate indicates a
substantial risk, one disregarded by FDOC
administrators. At the very least this amounts to
recklessness or gross negligence, which everyone
agrees suffices for a due process violation. See Fagan
v. City of Vineland, 22 F.3d 1296, 1305 (3d Cir. 1994)
(collecting cases); Burch v. Apalachee Cmty. Mental
Health Servs., Inc., 840 F.2d 797, 802 (11th Cir. 1988),
affirmed sub. nom. Zinermon v. Burch, 494 U.S. 113
(1990) (holding allegations of actions taken willfully,
wantonly, and with reckless disregard sufficient to
state a due process claim). See generally Farmer v.
Brennan, 511 U.S. 825, 839 (1994) (deliberate
indifference is conscious disregard of a substantial
risk).
This same reasoning applies to impoundment of
the Prisoners’ Guerilla Handbook and the information
packets. The record unquestionably establishes that
FDOC personnel failed to notify PLN on a couple of
occasions that it had impounded the Prisoners’
Guerilla Handbook and the information packets. The
injunction is appropriate because those failures are
part of the greater, widespread practice of not
providing notice.
Before concluding, this Court addresses two
remaining arguments. First, the FDOC contends that
PLN waived due process. Mr. Wright admitted that at
some point PLN stopped appealing impoundment
decisions. Tr. of Trial 159:20-160:2 (Jan. 5, 2015).
Apparently PLN thought appealing was futile. From
this the FDOC concludes that it no longer had to

App-105
apprise PLN of impoundment decisions since, in all
likelihood, PLN would not have appealed.
The problem with that logic is that the reasons for
impounding Prison Legal News vary. Indeed, the Rule
proscribes “total[] rejection” of a periodical and
mandates that “each issue of the subscription . . . be
reviewed separately.” Fla. Admin. Code R. 33501.401(5). That PLN did not appeal past
impoundments does not necessarily mean that it will
not appeal future impoundments based on different
reasons. The old adage that past behavior does not
predict future performance rings truer here, where the
underlying circumstances change over time.
More importantly, the FDOC failed to notify PLN
of many impoundment decisions. Of course PLN did
not appeal. It did not know that an issue had been
censored, by which institution, and on what grounds.
The fact that PLN may have later received a copy of
an impoundment notice from an inmate is of no
consequence. Notice must be timely and must set forth
the basis for censorship, which many impoundment
notices introduced at trial clearly did not. Armstrong,
380 U.S. at 552 (“[The opportunity to be heard] must
be granted at a meaningful time and in a meaningful
manner.”). Given these deficiencies, PLN did not
waive its right to due process by failing to appeal.
Finally, PLN asserts that the LRC’s practice of
affirming an impoundment decision on different or
additional grounds than that found by the initial
impounding institution violates Procunier. Recall that
Procunier instructs that certain “minimum procedural
safeguards” must accompany the decision to censor a
periodical. 416 U.S. at 417. PLN says that the LRC’s

App-106
practice violates the third safeguard requiring that
complaints about a censorship decision be referred to
someone other than the prison official who “originally
disapproved the [publication].” Id. at 418-19. PLN
says that by censoring a publication on a different or
additional basis, the LRC effectively becomes the
“original” decision-maker. And because no other
prison official reviews the LRC’s decisions, PLN is left
to ask the LRC to review its own decision, in violation
of Procunier.
Under PLN’s view, the reason for censorship
determines who “originally disapprove[s]” the
publication. There would be a different “original”
decision-maker for each new reason. But Procunier is
not so specific. It only requires that a different prison
official review the original censorship. It says nothing
about whether that review must be limited to the
reasons originally given.
This is consistent with Baker on Behalf of Baker
v. Sullivan, 880 F.2d 319, 320 (11th Cir. 1989), which
PLN relies on to argue that expanding the scope of
review without notice violates due process. In this case
the issue never expands. The initial impounding
institution is tasked with determining whether a
particular publication violates the Rule. The same
issue that the LRC must decide.
V.
The Supreme Court has made it clear that
“[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution.”
Turner, 482 U.S. at 84. Yet these protections mean

App-107
little if inmates do not understand them.28 Cue PLN.
Through its publications PLN teaches inmates their
rights and informs them of unconstitutional prison
practices. With this knowledge inmates become
another check to government encroachment on
constitutional rights. This in turn helps prison
administrators correct insidious practices, ensuring
long-term stability. Everyone ultimately benefits
when knowledge grows from more to more.
But the Constitution does not guarantee PLN
unfettered communication with inmates. That right
must be balanced against the legitimate penological
concerns inherent in running a prison system. In this
case, the FDOC requires PLN to conform its written
communications to Rule 33-501.401(3), which censors
publications
containing
certain
types
of
advertisements. After carefully considering the
evidence presented at trial and the arguments made
by the parties, this Court concludes that the FDOC’s
censorship of Prison Legal News under subsections
(3)(l) and (m) of the Rule does not violate PLN’s First
Amendment rights because the censorship reasonably
relates to public safety and prison security.
That the censorship in this case complies with the
First Amendment, however, does not give the FDOC
license to censor without regard to its due process
obligations under the Fourteenth Amendment. But
that is precisely what the FDOC has done, repeatedly.
It has impounded multiple issues of Prison Legal News
and other PLN mail without notifying PLN. Adhering
28 This is even more pernicious considering how prisoners are
not afforded counsel and how prisons limit inmates’ access to the
prison library, books, and legal materials.

App-108
to its regulations, it then fails to notify PLN when the
mail is finally rejected. The FDOC will continue to do
this going forward absent interjection by this Court.
For these reasons,
IT IS ORDERED:
1. Judicial estoppel does not preclude the
Florida Department of Corrections from
adopting its current litigation position.
2. The Florida Department of Corrections’
censorship of Prison Legal News under Rule
33-501.401(3) of the Florida Administrative
Code does not violate Prison Legal News’ First
Amendment rights.
3. The Florida Department of Corrections’
censorship procedures violate Prison Legal
News’ right to due process under the
Fourteenth Amendment.
4. The Clerk shall enter an amended judgment
stating:
Prison
Legal
News’
First
Amendment claim against the Florida
Department of Corrections is dismissed
with prejudice.
Prison Legal News successfully
proved that the Florida Department of
Corrections has violated its right to due
process
under
the
Fourteenth
Amendment. Prison Legal News has also
shown that the Florida Department of
Corrections’ current censorship practices
will continue to deprive Prison Legal
News of due process of law.

App-109
Accordingly, the Florida Department of
Corrections is permanently enjoined from
censoring Prison Legal News’ written
communications without due process of law.
To comply with due process of law, this
permanent injunction modifies the Florida
Department
of
Corrections’
current
notification procedures as follows:
(1) The Florida Department of Corrections
must notify Prison Legal News when it first
impounds
a
particular
written
communication by Prison Legal News.
(2) The notification must specify the prison
rule, including the subsection, purportedly
violated and must indicate the portion of the
communication that allegedly violates the
cited regulation.
(3) The Florida Department of Corrections
does not have to notify Prison Legal News
when copies of that same written
communication are subsequently impounded,
unless the subsequent impoundment decision
is based on a different or additional reason
not already shared with Prison Legal News.
(4) If the Literature Review Committee
rejects a written communication based on a
different or additional reason not already
shared with Prison Legal News, the Florida
Department of Corrections must notify Prison
Legal News of the basis for that decision,
including the specific prison rule violated and
the portion of the communication that
violates the cited regulation.

App-110
(5) This injunction is not governed by the
Prison Litigation Reform Act (PLRA) because
this is not a civil proceeding “with respect to
the conditions of confinement or the effects of
actions by government officials on the lives of
persons confined in prison.” 18 U.S.C. §
3626(g)(2). But even if the PLRA did apply,
the Court finds that the injunction complies
with
the
PLRA’s
“needs-narrownessintrusiveness” standard. See 18 U.S.C. §
3626(a)(1)(A). The relief is narrowly drawn,
as it only requires notice to Prison Legal
News and no other party, and only requires
notice on a per-issue (rather than a per-copy)
basis. It requires compliance with the
minimum requirements of due process.
Similarly, the relief extends no further than
necessary to correct the violation of PLN’s
due process rights. It only requires notice to
Prison Legal News and no other party, and
only requires notice on a per-issue (rather
than a per-copy) basis. For the same reasons,
the injunction is the least intrusive means
necessary to correct the violation of PLN’s
due process rights. Even though it would be
minimally burdensome to provide notice to
the publisher every time a copy of the
magazine is censored, the injunction only
requires notice on a per-issue basis. Finally,
the Court has given substantial weight to any
adverse impact on public safety or the
operation of a criminal justice system caused
by the injunction, and finds that the
injunction will have no impact on public

App-111
safety and almost no impact on the Florida
Department of Corrections, as the injunction
essentially requires compliance with the
FDOC’s own rule.
5. Although all claims have been adjudicated,
the Clerk must not close the file. This Court
retains jurisdiction over the open file to decide
costs and attorney’s fees, if any.
SO ORDERED on October 5, 2015.
s/Mark E. Walker
United States District
Judge

App-112
Appendix C
RELEVANT STATUTORY PROVISION
Fla. Admin. Code R. 33-501.401(3)
(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:
(a) It depicts or describes procedures for the
construction of or use of weapons, ammunition,
bombs, chemical agents, or incendiary devices;
(b) It depicts, encourages, or describes methods of
escape from correctional facilities or contains
blueprints, drawings or similar descriptions of
Department
of
Corrections
facilities
or
institutions, or includes road maps that can
facilitate escape from correctional facilities;
(c) It depicts or describes procedures for the
brewing of alcoholic beverages, or the
manufacture of drugs or other intoxicants;
(d) It is written in code or is otherwise written in
a manner that is not reasonbly subject to
interpretation by staff as to meaning or intent;
(e) It depicts, describes or encourages activities
which may lead to the use of physical violence or
group disruption;

App-113
(f) It encourages or instructs in the commission of
criminal activity;
(g) It is dangerously inflammatory in that it
advocates or encourages riot, insurrection,
disruption of the institution, violation of
department or institution rules;
(h) It threatens physical harm, blackmail or
extortion;
(i) It depicts sexual conduct as follows:
1.
Actual
intercourse;

or

simulated

sexual

2. Sexual bestiality;
3. Masturbation;
4. Sadomasochistic abuse;
5. Actual lewd exhibition of the genitals;
6. Actual physical contact with a person’s
unclothed genitals, pubic area, buttocks,
or, if such person is a female, breast with
the intent to arouse or gratify the sexual
desire of either party;
7. Any act or conduct which constitutes
sexual battery or simulates that sexual
battery is being or will be committed.
(j) It depicts nudity in such a way as to create the
appearance that sexual conduct is imminent, i.e.,
display of contact or intended contact with a
person’s unclothed genitals, pubic area, buttocks
or female breasts orally, digitally or by foreign
object, or display of sexual organs in an aroused
state.

App-114
(k) It contains criminal history, offender
registration, or other personal information about
another inmate or offender, which, in the hands of
an inmate, presents a threat to the security, order
or rehabilitative objectives of the correctional
system or to the safety of any person;
(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 the safety of any person.



 

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