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

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No. ______
In the

Supreme Court of the United States
________________

PRISON LEGAL NEWS,
v.

Petitioner,

SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS,
________________

Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Eleventh Circuit
________________
PETITION FOR WRIT OF CERTIORARI
________________
MICHAEL H. MCGINLEY
DECHERT LLP
1900 K Street, NW
Washington, DC 20006
(202) 261-3300

PAUL D. CLEMENT
Counsel of Record
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com

Counsel for Petitioner
(Additional Counsel Listed on Inside Cover)
September 14, 2018

ROGER A. DIXON
DECHERT LLP
2929 Arch Street
Philadelphia, PA 19104
(215) 994-4000

LINDSAY E. RAY
DECHERT LLP
1095 Avenue of the
Americas
New York, NY 10036
(212) 698-3500

SABARISH NEELAKANTA
MASIMBA MUTAMBA
DANIEL MARSHALL
HUMAN RIGHTS
DEFENSE CENTER
P.O. Box 1151
Lake Worth, FL 33460
(561) 360-2523

DEBORAH GOLDEN
HUMAN RIGHTS
DEFENSE CENTER
316 F Street, NW, #107
Washington, DC 20002
(202) 543-8100
DANTE P. TREVISANI
RANDALL C. BERG, JR.
FLORIDA JUSTICE
INSTITUTE, INC.
100 SE Second Street
Suite 3750
Miami, FL 33131
(303) 358-2081

Counsel for Petitioner

QUESTION PRESENTED
Petitioner produces an award-winning monthly
publication, Prison Legal News, featuring content
directed to the specialized interests of inmates,
including unlawful prison practices and litigation
clarifying inmates’ civil rights. Despite allowing the
magazine into its facilities for nearly two decades
without any resulting security threats, the Florida
Department of Corrections (FDOC) has banned every
issue of Prison Legal News since 2009, ostensibly
based on security concerns with the publication’s
advertising content. The FDOC’s censorship is a
national outlier—neither the federal Bureau of
Prisons nor any other state or county prison system
bans Prison Legal News based on its advertisements.
And the FDOC has not pointed to concrete evidence of
security problems either in the prison systems that
allow Prison Legal News or even in Florida during the
many years the publication was not censored. Nor has
FDOC pointed to any unique characteristic that would
explain why no other prison system shares its
concerns. In conflict with this Court’s longstanding
precedents and decisions from other circuits, the
decision below upheld Florida’s blanket ban on Prison
Legal News by blindly deferring to the FDOC’s
unsubstantiated security concerns and granting
virtually no weight to the First Amendment rights of
petitioner, inmates or advertisers.
The question presented is:
Whether the Florida Department of Corrections’
blanket ban of Prison Legal News violates Petitioner’s
First Amendment right to free speech and a free press.

ii
PARTIES TO THE PROCEEDING
Petitioner Prison Legal News was plaintiff in the
district court and appellee and cross-appellant before
the Eleventh Circuit. Respondent Secretary of the
Florida Department of Corrections was defendant in
the district court and appellant and cross-appellee
before the Eleventh Circuit.

iii
CORPORATE DISCLOSURE STATEMENT
Prison Legal News is a project of the Human
Rights Defense Center, Inc., a not-for-profit charitable
corporation. No publicly held corporation owns 10% or
more of its stock.

iv
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
CORPORATE DISCLOSURE STATEMENT ........... iii
TABLE OF AUTHORITIES ...................................... vi
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 3
JURISDICTION ......................................................... 3
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED...................................... 3
STATEMENT OF THE CASE ................................... 4
I.

Background .......................................................... 4
A. Prison Legal News ........................................ 4
B. FDOC’s Admissible Reading Material
Rule ............................................................... 6
C. Previous Litigation by Prison Legal News
Over the FDOC’s Admissible Reading
Material Rule ................................................ 9
D. District Court Proceedings and Decision .. 11
E. Eleventh Circuit Decision .......................... 12

REASONS FOR GRANTING THE PETITION....... 17
I.

The Eleventh Circuit’s Decision Conflicts
With This Court’s Precedents ........................... 18
A. This Court’s Precedents Recognize That
First Amendment Rights Are Not
Extinguished Within Prison Walls And
That Outlying Policies Like the FDOC’s
Ban Demand Closer Scrutiny .................... 18

v
B. Contrary to this Court’s Precedents, the
Eleventh Circuit Granted Complete
Deference
to
Florida
Prison
Administrators That Made It Impossible
for Petitioner to Succeed ............................ 20
C. The Eleventh Circuit’s Decision Conflicts
With Other Circuits’ Faithful Application
of This Court’s Decisions ............................ 24
II. A Correct Application of this Court’s
Precedents Would Require Relief For Petition
............................................................................ 28
III. The Eleventh Circuit’s Decision Is An
Invitation And A Roadmap For Other
Jurisdictions To Curtail Important First
Amendment Freedoms ...................................... 32
CONCLUSION ......................................................... 34
APPENDIX
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

vi
TABLE OF AUTHORITIES
Cases
Beard v. Banks,
548 U.S. 521 (2006) ........................................ passim
Bell v. Wolfish,
441 U.S. 520 (1979) ................................................ 19
Brown v. Phillips,
801 F.3d 849 (7th Cir. 2015).................................. 26
Cal. First Amendment Coal. v. Woodford,
299 F.3d 868 (9th Cir. 2002)............................ 25, 26
Holt v. Hobbs,
135 S. Ct. 853 (2015)........................................ 20, 31
Overton v. Bazzetta,
539 U.S. 126 (2003) ................................................ 20
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001)............................ 8, 24
Prison Legal News v. McDonough,
200 F. App’x 873 (11th Cir. 2006) ......................... 10
Procunier v. Martinez,
416 U.S. 396 (1974) .................................... 18, 20, 31
Ramirez v. Pugh,
379 F.3d 122 (3d Cir. 2004) ................................... 26
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015)............................................ 29
Thornburgh v. Abbott,
490 U.S. 401 (1989) ........................................ passim
Turner v. Cain,
647 F. App’x 357 (5th Cir. 2016) ........................... 27
Turner v. Safley,
482 U.S. 78 (1987) ................................ 13, 14, 19, 21

vii
Wolf v. Ashcroft,
297 F.3d 305 (3d Cir. 2002) ................................... 27
Wolff v. McDonnell,
418 U.S. 539 (1974) ................................................ 19
Statutes
Fla. Admin. Code R.33-210.101(5) ............................. 7
Fla. Admin. Code R.33-501.401 ............................. 6, 7
Fla. Admin. Code R.33-501.401(3) ................... 7, 8, 11
Fla. Admin. Code R.33-501.401(4) ............................. 8
Fla. Admin. Code R.33-501.401(8) ............................. 7
Fla. Admin. Code R.33-501.401(14) ........................... 7
Other Authorities
John E. Dannenberg, U.S. Supreme Court
Upholds $625,000 Judgment for Female
Prisoner Molested by Ohio Prison Guard
(Mar. 15, 2011), https://bit.ly/2NTJQ90 .................. 5
Defs’ Resp. in Opp. to Pltf’s Mot. for Prel.
Inj., Human Rights Defense Center v. Sw.
Va. Reg. Jail Auth., No. 1:18-cv-13 (W.D.
Va. May 29, 2018) .................................................. 33
Derek Gilna, Supreme Court Reverses
Criminal Conviction for Racial Bias by
Juror (Mar. 31, 2017),
https://bit.ly/2oITJeV ............................................... 5
Derek Gilna, Supreme Court Sets Aside
Florida’s Death Penalty Sentencing
Procedure (Feb. 2, 2016),
https://bit.ly/2Nkww0y ............................................ 5

viii
Emily Masters, By the numbers: New York’s
prison population, Albany Times Union
(Sept. 21, 2017), https://bit.ly/2loj2B6 ................... 15
David M. Reutter, Eleventh Circuit Affirms
Injunction in Florida DOC Mental Health
Conditions Pepper Spray Case, Prison
Legal News (Feb. 15, 2011),
https://bit.ly/2wsxDBC............................................. 5
David M. Reutter, Florida’s Department of
Corrections: A Culture of Corruption, Abuse
and Deaths, Prison Legal News
(Feb. 2, 2016), https://bit.ly/2N1CX8H ................... 5
David M. Reutter, Record Number of Florida
Prisoners Died in 2016, 2017,
Prison Legal News (Jan. 31, 2018),
https://bit.ly/2PU46J9 .............................................. 5
Kent A. Russell, Habeas Hints: 2012
Supreme Court Habeas Highights: Plea
Bargaining Cases (Sept. 15, 2012),
https://bit.ly/2NkRyfp .............................................. 5
Order, Prison Legal News v. Crosby, No.
3:04-cv-14-JHM-TEM (M.D. Fla. July 28,
2005), Doc. 87 ......................................................... 10

PETITION FOR WRIT OF CERTIORARI
The Florida Department of Corrections (FDOC),
alone among the fifty states, the federal Bureau of
Prisons (BOP), and every county jail in the nation, is
violating Prison Legal News’ (PLN) First Amendment
rights by confiscating every issue of its magazine
based on the content of the publication’s
advertisements. This broad restriction on PLN’s
protected speech is neither logical nor necessary. For
years, Florida allowed Prison Legal News to circulate
in its prison system without incident. But in 2003,
FDOC engaged in its first attempt at censorship,
which prompted an earlier round of litigation. In
2005, in an effort to moot that earlier litigation, the
FDOC briefly realigned itself with every penal
institution in the nation in concluding that PLN’s
publications do not pose a material security threat.
But in 2009, the FDOC abruptly changed course and
has censored every subsequent issue of PLN.
Although it purports to justify this censorship of
Prison Legal News on security concerns with its
advertising, the FDOC has never presented any
evidence that the content of those advertisements
actually caused any such breaches of security during
the 55 months FDOC relented in its censorship. Nor
has it ever shown that security improved once FDOC
renewed its ban. Nor has it identified any unique
problems faced by Florida penal institutions that
justify its alone-in-the-nation position. Instead, it
relied entirely on the censor’s refrain that completely
banning PLN “certainly help[s]” prevent “potential
security threats.”

2
But this Court has never allowed such an
unsupported, self-serving assertion to justify a
complete ban on the core free speech rights of either
inmates or the press. Instead, the Court has long
reminded lower courts that prison walls do not form a
barrier against free speech or free press rights.
Publishers, reporters, and advertisers have a
constitutionally protected interest in communicating
with prisoners, and prisoners have a right to receive
those communications. These protections are all the
more important when the publication at issue is
uniquely designed to inform prisoners of their legal
rights, and a prison’s decision to silence that speech is
all the more suspect when it is applied in a blanket
manner to the entire incarcerated population based on
bare assertions of security concerns without
supporting evidence. While valid penological interests
can justify intrusions on speech within prison walls
that would not be permissible outside them, the Court
has always required a nexus between valid penological
interests and the prison’s intrusions on free speech.
And it has never accepted mere conjecture as
sufficient to support this kind of blanket ban.
The Eleventh Circuit’s decision is an outlier
ruling upholding an outlier policy. By ratcheting up
the deference owed to prison officials and ratcheting
down the quantum of evidence those officials must
supply to justify wholesale censorship of core free
speech rights, the Eleventh Circuit’s decision is
grossly out of step with this Court’s precedents. And
it is flatly inconsistent with the rulings of other
circuits that have faithfully applied this Court’s
decisions to reject censorship of the “core protected
speech” that Prison Legal News offers in its

3
magazines. Although the censorship of PLN has been
limited to Florida, the threat to First Amendment
rights if the decision is left standing certainly does not
end there. The Eleventh Circuit’s decision provides
both an invitation and a roadmap to silence PLN and
any other publication that seeks to inform prisoners of
their rights or to expose unlawful conduct by prison
officials. There is little doubt that the ruling below
will prompt other prison systems to follow Florida’s
lead. Rather than let that trend blossom into further
censorship, this Court should step in now to vindicate
the First Amendment.
OPINIONS BELOW
The Opinion of the Eleventh Circuit affirming the
judgments of the district court is reported at 890 F.3d
954 and reproduced at App.1-47. The District Court’s
Order entering judgment for Respondent on
Petitioner’s First Amendment claim and entering
judgment for Petitioner on its Fourteenth Amendment
claim is unreported and reproduced at App.48-112.
JURISDICTION
The Eleventh Circuit entered its opinion on May
17, 2018. On August 3, 2018, Justice Thomas granted
an extension to September 14, 2018 to file this petition
for writ of certiorari. Dkt. No. 18A126. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the

4
freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to
petition the government for a redress of
grievances.
Relevant portions of the FDOC’s Rule on
“Admissible Reading Material,” Fla. Admin. Code
R. 33-501.401(3), is reproduced in the Appendix.
STATEMENT OF THE CASE
I.

Background
A. Prison Legal News

Petitioner Prison Legal News (PLN) exists to
advance and protect important constitutional
liberties. It is a project of the Human Rights Defense
Center,
Inc.,
a
not-for-profit,
Florida-based
corporation dedicated to the protection and
advancement of human rights. For nearly 30 years,
PLN has published the award-winning Prison Legal
News, a monthly magazine of prison news and
analysis, featuring content informing inmates of
unconstitutional prison practices and educating them
about their civil rights under the law. By publishing
Prison Legal News, PLN achieves its core missions of
public education, advocacy, and outreach on behalf of,
and for the purpose of assisting, prisoners who seek to
enforce their constitutional and basic human rights in
our nation’s criminal justice system.
To further PLN’s mission, Prison Legal News
contains articles by legal scholars, attorneys,
prisoners, and news wire services, presenting news
and analysis primarily of legal developments affecting
incarcerated people and their families, as well as
investigative reports and political and news

5
commentary largely critical of the prison system.
Indeed, during the FDOC’s ban on Prison Legal News,
the magazine has published dozens of reports
exposing corruption and abuses in Florida’s penal
system. See, e.g., David M. Reutter, Record Number
of Florida Prisoners Died in 2016, 2017, Prison Legal
News (Jan. 31, 2018), https://bit.ly/2PU46J9; David M.
Reutter, Florida’s Department of Corrections: A
Culture of Corruption, Abuse and Deaths, Prison Legal
News (Feb. 2, 2016), https://bit.ly/2N1CX8H; David M.
Reutter, Eleventh Circuit Affirms Injunction in
Florida DOC Mental Health Conditions Pepper Spray
Case, Prison Legal News (Feb. 15, 2011),
https://bit.ly/2wsxDBC.
Likewise, during the course of FDOC’s ban,
Prison Legal News has featured numerous stories on
decisions of this Court of particular interest to
inmates. See, e.g., Derek Gilna, Supreme Court
Reverses Criminal Conviction for Racial Bias by Juror
(Mar. 31, 2017), https://bit.ly/2oITJeV; Derek Gilna,
Supreme Court Sets Aside Florida’s Death Penalty
Sentencing
Procedure
(Feb.
2,
2016),
https://bit.ly/2Nkww0y; Kent A. Russell, Habeas
Hints: 2012 Supreme Court Habeas Highights: Plea
Bargaining
Cases
(Sept.
15,
2012),
https://bit.ly/2NkRyfp; John E. Dannenberg, U.S.
Supreme Court Upholds $625,000 Judgment for
Female Prisoner Molested by Ohio Prison Guard (Mar.
15, 2011), https://bit.ly/2NTJQ90.
Prison Legal News has a monthly circulation of
approximately 7,000 printed copies and has
subscribers in the United States and abroad, including
incarcerated subscribers in all 50 State correctional

6
systems, the federal Bureau of Prisons (BOP), and
numerous detention centers and county jails
throughout the country. Like most news publications,
PLN subsists by including advertisements in Prison
Legal News.
Advertisers interested in buying
advertising space in Prison Legal News include some
law firms specializing in prisoner litigation and
schools offering inmate correspondence courses, but
they also include pen pal services, less expensive
inmate phone services, and cash-for-stamps services.
It is undisputed that printing a Florida-only edition
without the latter category of advertisements would
be cost-prohibitive for PLN. See App.35 Nor has the
FDOC ever indicated that it would actually deliver
such a Florida-specific edition.
B. FDOC’s Admissible Reading Material
Rule
The FDOC has adopted a number of regulations
governing Florida’s prisons. The rule at issue here,
the “Admissible Reading Material” Rule, addresses
prisoner mail. See Fla. Admin. Code R.33-501.401. It
allows prison officials to screen incoming mail
addressed to prisoners, and it directs these officials to
impound any publication that is found to violate any
one of thirteen criteria.
Relevant to this case, the current Rule requires
that a publication be impounded if:
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.

7
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]
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).
In Florida prisons, officials screen incoming
prisoner mail for compliance with these regulations.
Prison mailroom staff open every piece of non-legal
mail, including publications like Prison Legal News,
and search for contraband and prohibited
communications. Fla. Admin. Code R.33-210.101(5),
33-501.401. If a mailroom employee believes that a
publication violates the “Admissible Reading
Material” Rule, he or she impounds it. See Fla. Admin.
Code R.33-501.401(8).
The Literature Review Committee (LRC), which
is staffed by three FDOC employees, meets
periodically to decide whether to affirm or overturn
such impoundment decisions. Fla. Admin. Code R.33501.401(14). However, the LRC only reviews the
pages of the impounded publication that contain the
offending advertisements—the LRC does not see or
review the entire publication, even if the prominence
or prevalence of disfavored advertising “throughout
the publication” formed the basis of the impoundment

8
decision. If an issue of a publication has been rejected
in the past, the LRC automatically rejects the
publication each future time it comes before the LRC.
Fla. Admin. Code R.33-501.401(3)-(4).
Since September 2009, the FDOC has impounded
every single issue of Prison Legal News it has received.
Most of the issues have been rejected pursuant to Fla.
Admin. Code R.33-501.401(3)(l), on the basis that
certain problematic advertising is “prominent or
prevalent throughout the publication,” even though
the LRC reviewed only the pages containing the
advertising in question. As a result of this process, the
number of PLN’s subscribers in Florida prisons has
dropped precipitously. Should the FDOC’s aggressive
policy continue, the number of Florida prisonsubscribers will soon be zero.
The FDOC’s censorship of Prison Legal News is a
national outlier. To PLN’s knowledge, based on its
almost three decade’s experience of having subscribers
in the federal system and all 50 State prison systems,
Florida is currently the only State in the union that
completely censors the magazine because of its
advertising content.1 No other State corrections
agency, nor the BOP, nor any detention center nor
county jail (including all 67 county jails in Florida)
considers it necessary to censor Prison Legal News
based solely on its advertisements. Even privateAt various times, other states have impounded Prison Legal
News for reasons other than its advertising content, many times
based on blanket prohibitions that applied across the board to
other publications. PLN has frequently mounted successful
challenges to those policies, as explained below. See, e.g., Prison
Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001).
1

9
prison censorship at Florida has occurred only at the
behest of the FDOC; none of the private prison
operators ban Prison Legal News in their out-of-state
facilities based on the magazine’s advertisements.2
C. Previous Litigation by Prison Legal
News Over the FDOC’s Admissible
Reading Material Rule
From PLN’s founding in 1990 until 2003, the
publisher successfully distributed Prison Legal News
to Florida’s prison population. In February 2003, the
FDOC began censoring Prison Legal News based on its
advertising content. PLN sued, raising free speech
and due process claims under the First and
Fourteenth Amendments.
While the suit was pending in March 2005, the
FDOC amended Rule 33-501.401 to clarify that
publications would not be rejected for advertising
content that is merely incidental to, rather than the
focus of, the publication. App.52. Based on this
change, the FDOC insisted that it would no longer
censor Prison Legal News. After the amendment, and
throughout the remainder of that phase of the
litigation, the FDOC refrained from censoring Prison
Legal News and successfully delivered it to Florida
prisoners. In addition, the FDOC delivered the
hundreds of Prison Legal News issues that it
impounded during the 2003-2005 censorship period.

2 The GEO Group and Corrections Corporation of America, now
known as CoreCivic, were initially co-defendants in the lower
court proceedings but were subsequently dismissed from the suit
pursuant to a settlement agreement that they reached with PLN.

10
The FDOC thus urged the court to dismiss PLN’s
First Amendment claims as moot based on the policy
change. The FDOC also informed the court that it no
longer had any security concerns with PLN’s
advertisements. Based on these representations, the
trial court agreed that the claim had become moot,
finding that “the FDOC ha[s] plenty of ways at its
disposal to prevent the inmates from taking
advantage of any illicit services offered in the
advertisements, [and] its procedures and policies
already ensure that publications such as PLN, which
are not focused on such content, can be distributed to
inmates without any substantial security concerns.”
Order 13-14, Prison Legal News v. Crosby, No. 3:04-cv14-JHM-TEM (M.D. Fla. July 28, 2005), Doc. 87.
The Eleventh Circuit affirmed that decision based
on the same representations from the FDOC.
Specifically, the Court of Appeals held 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 th[e]
case’ in the future.” Prison Legal News v. McDonough,
200 F. App’x 873, 878 (11th Cir. 2006). Relying on the
FDOC’s assurances about how it would apply its new
policy, the Eleventh Circuit had “no expectation that
FDOC w[ould] resume the practice of impounding
publications based on incidental advertisements.” Id.
The FDOC has never alleged, let alone documented,
that its delivery of Prison Legal News during the
nearly two decades it allowed the magazine to
circulate led to any security threats.

11
D. District Court Proceedings and Decision
Only three years after securing dismissal of PLN’s
first lawsuit, the FDOC resumed its censorship of
Prison Legal News based on its advertising content. In
2009, the FDOC amended its Admissible Reading
Material Rule to instruct prison officials to reject a
publication if prohibited advertisements are
“prominent or prevalent throughout the publication,”
Fla. Admin. Code R.33-501.401(3)(l), and the FDOC
reinstituted its blanket, state-wide ban of Prison Legal
News.
In November 2011, PLN again sued the FDOC.
PLN challenged the FDOC’s censorship of PLN’s
protected speech under the First and Fourteenth
Amendments.3 PLN sought a declaratory judgment
and a permanent injunction. After denying crossmotions for summary judgment, the district court held
a four-day bench trial.
The court upheld the FDOC’s censorship of PLN’s
protected speech. Although the FDOC produced no
evidence that Florida’s prisons had experienced any
new security problems traceable to its decision to stop
censoring Prison Legal News, the court broadly
deferred to the FDOC’s claimed need to resume
censorship. See App.90-92. And despite finding that
PLN could not afford to publish its magazine without
advertisements or publish a Florida-only version of
Prison Legal News, the court found that PLN had
3 PLN also raised a due process claim, attacking the FDOC’s
failure to provide adequate notice of its impoundment of Prison
Legal News. The District Court ruled in PLN’s favor on that
claim, and the Eleventh Circuit affirmed.

12
alternative means of expressing itself in Florida’s
prisons. See App.92.
The district court further concluded that the
FDOC could not accommodate PLN’s rights without
burdening prison resources or security concerns. See
App.93-94. Instead of pointing to specific evidence
supporting this conclusion, the court believed that
Supreme Court precedent required it to defer to the
“informed discretion of corrections officials.” App.93
(quoting Thornburgh v. Abbott, 490 U.S. 401, 418
(1989)).
The district court found it “troubling” that no
other prison system in the United States censors
Prison Legal News for its advertising content, App.94,
but declined to conclude that the FDOC’s de facto ban
was an exaggerated response to its security concerns.
The court noted the “many other worrisome facts
uncovered at trial,” including the inherent vagueness
of the Rule’s “prominent or prevalent” standard and
the doubtful capability of the LRC to assess prevalence
without reviewing the entire publication. App.95.
Nevertheless, the court concluded that the FDOC’s
uniform rejection of Prison Legal News suggested that
the Rule could be applied intelligibly, and it
considered itself constrained to uphold the FDOC’s
practice of censoring PLN. See App.97.
After the entry of final judgment, both parties
appealed.
E. Eleventh Circuit Decision
The Eleventh Circuit affirmed the district court’s
order in its entirety. Like the District Court, the
Eleventh Circuit viewed itself as obliged to grant
“‘wide-ranging’ and ‘substantial’ deference to the

13
decisions of prison administrators.” See App.20. The
court noted the four factors this Court articulated in
Turner v. Safley, 482 U.S. 78 (1987), “[t]o balance
judicial deference with ‘the need to protect
constitutional rights.’” App.19 (quoting Turner, 482
U.S. at 85, 89). But after a brief nod to this Court’s
requirement that there must be “more than a
formalistic logical connection” between a prison
regulation and a penological objective, App.19-20
(quoting Beard v. Banks, 548 U.S. 521, 535 (2006)
(plurality)), the Eleventh Circuit deferred to prison
officials on each Turner factor.
In applying Turner, the Eleventh Circuit relied
upon the conjecture of the FDOC’s expert witness. On
the question of whether a rational connection existed
between the FDOC’s impoundment decision and its
security concerns, the court minimized the FDOC’s
failure to present evidence that magazine
advertisements had actually caused a security breach.
See App.25-27. The court placed great weight on
testimony that “the ads ‘create the possibility, [the]
real possibility’ of inmates doing an end run around
prison rules.” See App.29 (emphasis added). The
court proceeded to approve the FDOC’s concerns about
the specific prohibited advertisements in each
instance, despite the lack of concrete evidence of an
actual security threat. See App.32-33 (crediting
testimony that the large number of cash-for-stamps
ads proves that inmates are using those companies);
App.33-34 (recounting testimony about what an
inmate “could” do via a prisoner concierge service). In
some instances, the court even inserted its own
conjecture and speculation. See App.30 (speculating

14
that “internet-based phone technology” had worsened
the three-way calling problem).
The Eleventh Circuit also found—unaided by any
systematic review or measurable criteria—that the
advertisements at issue were “prominent or
prevalent,” and therefore implicated the FDOC’s
regulations.
See App.13 n.7.
Even after
acknowledging that the advertisements were no more
“prominent or prevalent” in 2009 as compared to 2005
when taking into account the fact that the average
issue of Prison Legal News had increased to 64 pages
from 48 pages, the Eleventh Circuit relied on the
increased number of full-page advertisements to
support the conclusion that the advertisements were
sufficiently “prominent or prevalent.” Id.
While crediting every speculation advanced by the
FDOC, the Eleventh Circuit conversely ignored
critical evidence undermining any supposed
relationship between the FDOC’s censorship of Prison
Legal News and its claimed penological interests. The
court dismissed the fact that FDOC had not
experienced any noticeable increase in relevant
security threats from the 19 years of Prison Legal
News issues it allowed into its institutions. And it
ignored the lack of any evidence that the ban on Prison
Legal News has led to any decrease in the number of
related prison rule violations since 2009.
Its treatment of the other Turner factors was
similarly one-sided.
The second Turner factor
considers whether PLN had alternative means to
exercise its right of access to prisoners. See Turner,
482 U.S. at 90. The Eleventh Circuit conceded that no
alternative method existed for distributing Prison

15
Legal News to Florida inmates because it can neither
publish Prison Legal News without advertising
revenue nor publish a Florida-specific version of its
nationally distributed publication. But the court
stressed that PLN can distribute other, unrelated
materials. See App.35-37. On the third Turner
factor—which considers the impact on guards and
other inmates of accommodating PLN’s constitutional
rights—the panel again eschewed concrete evidence in
favor of generalized, unsubstantiated concerns about
increased cost and the “ripple effects” of information
exchange among inmates. See App.37-38.
Under the fourth Turner factor, the court was
required to consider whether the FDOC’s response
was exaggerated. Despite the undisputed evidence
that no other penal institution in the Nation considers
it necessary to ban Prison Legal News based on its
advertisements, the Eleventh Circuit held that the
FDOC’s chosen policy of unilateral censorship was a
perfectly proportionate response to its concerns. To
support its argument that Florida had many other
alternative options at its disposal, PLN had presented
measures used in other jurisdictions, such as New
York State Department of Corrections and
Community Supervision’s (DOCCS) practice of
affixing a notice to each issue of Prison Legal News
advising inmates that some of the services advertised
are prohibited by prison regulations. The Eleventh
Circuit sarcastically likened this practice to living in
“la-la-land,” even though New York prison officials
manage one of the most dangerous prison populations
in the country. See Emily Masters, By the numbers:
New York’s prison population, Albany Times Union
(Sept. 21, 2017), https://bit.ly/2loj2B6 (noting that two

16
thirds of New York inmates have been convicted of
violent crimes).
Thus, without any actual explanation from FDOC
as to why it alone amongst all prison systems must
ban Prison Legal News in its entirety every month, the
panel brushed aside alternatives successfully
employed elsewhere and held that the FDOC’s
approach was not overbroad. See App.39-42. Rather
than credit any concrete, experience-based evidence,
the court generically stated that “[t]here is no onesize-fits-all approach to prison management,” and
“every institution faces different security problems
and deals with those problems in different ways.”
App.41.
Concluding its Turner analysis, the panel
underscored its extreme deference to FDOC’s
concerns. After addressing all of the factors, the court
noted that the FDOC’s witness “summed up the
relationship between the impoundment of Prison
Legal News and the [FDOC’s] prison security and
public safety interests by stating that those rules
‘certainly help[]’ advance those interests.” App.42-43.
That extremely low bar, the Court proclaimed, “[t]hat
is all Turner requires.” App.43. And, in so declaring,
the court made no mention of this Court’s most recent
exhortation that courts should not favor “logical
relation[s]” over “experience-based conclusion[s],” or
the Court’s emphatic statement that “the deference
owed prison authorities” does not “mak[e] it
impossible for prisoners or others attacking a prison
policy … ever to succeed.” Beard, 548 U.S. at 533, 535.

17
REASONS FOR GRANTING THE PETITION
The Eleventh Circuit upheld Florida’s blanket
ban on Prison Legal News only by affording blind
deference to Florida prison officials, in direct conflict
with this Court’s decisions and other circuits’ faithful
application of those precedents.
Rather than
requiring an “experience-based” relationship between
Florida’s security concerns and its censorship of core
free speech rights, the Eleventh Circuit ignored the
actual experience of prison officials in Florida and
throughout the nation. While novel problems and
policies may require a degree of speculation, here
prison officials had the benefit of nearly two decades
during which Florida allowed Prison Legal News into
its institutions, along with the experience of every
other prison system in the country. Deferring to
speculation in the absence of experience-based
demonstration of increased risks during the
interregnum or decreased risks after censorship was
re-imposed is the antithesis of what this Court’s
precedents require and what meaningful protection of
First Amendment rights demands. Indeed, rather
than meaningfully balancing the state’s penological
interests against PLN’s constitutional rights, the
Eleventh Circuit’s reasoning weighted the scales in a
manner that made it “impossible for” any publisher
“ever to succeed.” Beard, 548 U.S. at 535. While
Florida’s policy and the Eleventh Circuit’s reasoning
currently stand alone, there is already reason to
believe that they are in the process of being replicated
by other prisons and other courts. Rather than let this
free speech violation metastasize, the Court should
step in now to decide this important question and

18
resolve the discord between the Eleventh Circuit’s
decision and this Court’s precedents.
I.

The Eleventh Circuit’s Decision Conflicts
With This Court’s Precedents.
A. This Court’s Precedents Recognize That
First Amendment Rights Are Not
Extinguished Within Prison Walls And
That Outlying Policies Like the FDOC’s
Ban Demand Closer Scrutiny.

The FDOC’s censorship of Prison Legal News
clearly impinges on PLN’s core First Amendment
rights, as incorporated against the States by the
Fourteenth Amendment. This Court has made it
abundantly clear that prisons and First Amendment
values are compatible. That is particularly true when
it comes to the Free Speech and Free Press rights of
publishers outside of prison walls who seek to include
inmates within their audience. “[T]here is no question
that publishers who wish to communicate with those
who, through subscription, willingly seek their point
of view have a legitimate First Amendment interest in
access to prisoners.” Thornburgh, 490 U.S. at 408. As
a result, prison walls do not “bar free citizens from
exercising their own constitutional rights by reaching
out to those on the ‘inside.’” Id. at 407. On the
contrary, those seeking to communicate with
prisoners enjoy “a protection against unjustified
governmental interference with the intended
communication.” Procunier v. Martinez, 416 U.S. 396,
408-09 (1974), overruled in part by Thornburgh, 490
U.S. 401.
Nor are prisoners themselves without First
Amendment rights, including the right to receive

19
Prison Legal News and similar publications. “It is
equally certain that ‘[p]rison walls do not form a
barrier separating prison inmates from the
protections of the Constitution’ . . . .” Thornburgh, 490
U.S. at 407 (quoting Turner, 482 U.S. at 84). This
Court has long made clear that “convicted prisoners do
not forfeit all constitutional protections by reason of
their conviction and confinement in prison.” Bell v.
Wolfish, 441 U.S. 520, 545 (1979). “There is no iron
curtain drawn between the Constitution and the
prisons of this country.” Wolff v. McDonnell, 418 U.S.
539, 555-56 (1974).
The nature of the First Amendment values at
stake here demands greater scrutiny under this
Court’s precedents. First Amendment rights are at
their zenith, and their abridgment the most harmful,
when a prison censors publications that inform
inmates of their legal and civil rights and chronicle
violations thereof. A publication like Prison Legal
News is both uniquely useful to prisoners and, based
on its content, a uniquely attractive target for
censorship by prison officials. Indeed, during the last
9 years of censorship by the FDOC, Florida inmates
were barred from reading the many articles in Prison
Legal News regarding problems in their own prison
system. See, e.g., supra at 5, 8. During the same
period, Florida inmates were routinely denied access
to articles explaining the practical implications of
rulings of state and federal courts, including this
Court, in terms that every inmate—and not just those
immersed in the law—could understand. See, e.g.,
supra at 5. The particularly acute First Amendment
interests at stake here weigh heavily in the balancing
set forth in this Court’s precedents.

20
At the same time, the nature of the FDOC’s policy
should also have triggered more demanding scrutiny
under this Court’s case law. First, the reality that the
FDOC applies its “prominent or prevalent” standard
as a de facto ban should have triggered more searching
scrutiny. See Overton v. Bazzetta, 539 U.S. 126, 134
(2003) (suggesting that, “if faced with evidence that
[the State Department of Corrections’] regulation is
treated as a de facto permanent ban,” the Court would
not defer to the prison officials’ judgment). Moreover,
the reality that the FDOC’s policy is a complete outlier
and that the FDOC perceives security threats
undetected by every other prison system in the nation
also warrants closer scrutiny. See Martinez, 416 U.S.
at 413 n.14; cf. Holt v. Hobbs, 135 S. Ct. 853 (2015).
B. Contrary to this Court’s Precedents, the
Eleventh Circuit Granted Complete
Deference
to
Florida
Prison
Administrators That Made It Impossible
for Petitioner to Succeed.
This Court’s decisions have always emphasized
the need to meaningfully balance First Amendment
rights against prison systems’ valid penological
interests. Thus, the interests of those who “bear [the]
significant responsibility for defining the legitimate
goals of a corrections system and for determining the
most appropriate means to accomplish them,”
Overton, 539 U.S. at 132, must be weighed against
“the legitimate demands of those on the ‘outside’ who
seek to enter that environment, in person or through
the written word.” Thornburgh, 490 U.S. at 407. In
ensuring that this balancing does not devolve into
blind deference, the Court has emphasized that

21
judgments must be “experience-based,” Beard, 548
U.S. at 533, and not rely on speculation or involve
“exaggerated response[s],” Thornburgh, 490 U.S. 418
(citing Turner, 482 U.S. at 90-91). And the Court has
most recently emphasized that this framework
ensures that the deck is not inexorably stacked
against free speech rights within prison walls. See
Beard, 548 U.S. at 535.
The Eleventh Circuit eschewed this balanced
approach in favor of blind deference to prison
administrators. PLN set forth “experience-based”
arguments for why the FDOC’s blanket ban was not
justified by the FDOC’s stated security interests.
Perhaps most significant, PLN pointed out that the
FDOC had presented no evidence that security risks
associated with the relevant advertisements had
increased during the 55 months that the FDOC
refrained from censoring Prison Legal News. Nor had
the FDOC provided experience-based evidence that
security threats decreased once its censorship was
renewed. These omissions are particularly damning
given the ample opportunities for the FDOC to point
to experience-based problems during its own
censorship interregnum and in the innumerable
prisons and jails that do not censor Prison Legal News.
Whatever the need for speculation when prison
officials tackle a novel problem or ban a hazard that
no prison officials tolerate, the need for experiencebased evidence is most pronounced when there are
countless control groups (i.e., prison systems that
allow the banned practice), including in Florida’s 67
county jails, federal and private prisons in Florida,
and in the entire FDOC system itself.

22
Petitioner also emphasized that the FDOC
resorted to censorship of Prison Legal News based on
its advertisements, while tolerating primary conduct
that posed a much greater and more direct threat to
the FDOC’s stated concerns. For example, the FDOC
banned Prison Legal News based in part on stampsfor-cash advertisements while allowing prisoners to
amass large amounts of stamps.4 It disfavored
advertisements of third-party telephone services
while permitting calls to outside cell phone numbers
that could not easily be tracked and could connect to
three-way calls, despite purporting to limit prisoner
calls to pre-approved lists of numbers. And, while
expressing concerns about pen-pal advertisements,
Florida prisoners are allowed to have pen pals.
Moreover, PLN highlighted the fact that it does not
directly provide any of the services in question.
Finally, petitioner pointed out the difficulties with
the FDOC’s “prominent or prevalent” standard. Not
only was that unclear standard hopelessly
standardless, it also reflects a judgment that some
undefined quantum of advertisements for conduct
forbidden to prisoners—whether three-way calling,
cash-for-stamps, or vacation escapes to Aruba—is
consistent with prison security. But the FDOC has
never explained why it can tolerate some cash-forstamps advertisements sprinkled throughout a
publication, for example, but must censor the entire
publication when prison officials determine that those
advertisements become “prominent or prevalent.”
4 The FDOC also declined to institute a system of posting
envelopes using a postage meter and debiting the inmate’s
account, thereby obviating the need for stamps altogether.

23
This not-too-much-disfavored-advertising standard is
troubling not only because it suggests that the
disfavored advertising is not incompatible with the
demands of prison security but because it allows
prison officials to target publications that are most
focused on the needs of inmates as judged by both
their editorial content and their advertising content.
The Eleventh Circuit dismissed all of these
experience-based arguments in favor of the FDOC’s
speculation that banning Prison Legal News could
“help” avoid the “real possibility” that the
advertisements
might
assist
prisoners
in
accomplishing the threats the FDOC identified. But
Beard and the many cases that came before it
emphasized that a prison’s infringement on First
Amendment freedoms—especially those exercised by
third-parties outside the prison walls—must bear
“more than a formalistic logical connection between a
regulation and a penological objective.” 548 U.S. at
535. Instead, there must be a rational connection
based in experience and evidence beyond the mere
say-so of self-interested prison officials. After all, if all
that is needed to suppress First Amendment rights is
a conviction by prison officials that less speech might
help them do their jobs, then there is little left to this
Court’s repeated assurance that constitutional rights
are not surrendered at the prison gates. The Eleventh
Circuit’s diluted standard is simply unfaithful to this
Court’s precedents. Accordingly, this Court should
step in to resolve this distortion of its precedents and
remind lower courts that prison walls do not form an
impenetrable barrier to critical First Amendment
speech—especially publications by a free press
intended to educate prisoners about everything from

24
this Court’s decisions to troubling abuses within
prison systems and other news of interest to prisoners
and their families.
C. The
Eleventh
Circuit’s
Decision
Conflicts With Other Circuits’ Faithful
Application of This Court’s Decisions.
The Eleventh Circuit’s diluted approach conflicts
not only with this Court’s precedents but also with
decisions from other Circuits that have faithfully
applied this Court’s precedents. In rejecting PLN’s
argument that the FDOC must show an experiencebased connection between its censorship and its stated
security concerns, the Eleventh Circuit concluded that
“[r]equiring proof of such a correlation constitutes
insufficient deference to the judgment of the prison
authorities with respect to security needs.” App.26.
However, following this Court’s decisions, from Turner
to Thornburgh to Beard, many other Circuits have
taken precisely the opposite view.
In Prison Legal News v. Cook, 238 F.3d 1145 (9th
Cir. 2001), for example, a challenge brought by PLN to
Oregon’s ban on all “bulk mail,” the Ninth Circuit took
a markedly different approach from that of the
Eleventh Circuit here. Noting that Oregon was “the
only prison system in the country that refuse[d] to
deliver subscription non-profit organization standard
mail,” id. at 1146-47, and that it would be “too
expensive” for PLN to send its publications by firstclass mail, id. at 1148, the Ninth Circuit declined to
defer to prison officials’ purported security concerns
and upheld PLN’s First Amendment rights. The court
emphasized that “[t]he speech at issue” in Prison
Legal News “is core protected speech,” id. at 1149,

25
while rejecting the prison’s argument that PLN’s
rights were not infringed because it could simply pay
the higher postage rate. Although they assessed
different prison policies, the Ninth and Eleventh
Circuit’s analyses could not have been more different:
While the Ninth Circuit found it relevant that
Oregon’s policy was a national outlier, the Eleventh
Circuit dismissed Florida’s alone-in-the-nation
position as immaterial. While the Ninth Circuit was
troubled by the fact that Oregon’s policy made it
impractical for PLN to deliver its “core protected
speech” to inmates, the Eleventh Circuit dismissed
FDOC’s blanket censorship making it impossible for
PLN to deliver its speech with the blithe suggestion
that PLN’s other publications were uncensored. And
while the Ninth Circuit refused to accept prison
officials’ idiosyncratic and unsupported security
rationales, the Eleventh Circuit viewed itself as bound
to credit Florida’s conjecture and speculation. The
consequence of these conflicting approaches is that
Prison Legal News is free to exercise its First
Amendment rights in Oregon, while it has been
silenced in Florida.
In other contexts, too, the Ninth Circuit has
similarly rejected arguments based on conjecture and
speculation, rather than concrete experience-based
evidence. In California First Amendment Coalition v.
Woodford, 299 F.3d 868 (9th Cir. 2002), the court
addressed restrictions on the public’s access to view
prisoner executions. Applying the Turner factors, the
court rejected the prison’s security concerns—which
were based, in part, on fear of retaliation against
prison officials—as “pure speculation.” Id. at 882.
While recognizing that prisons may anticipate

26
security threats and avoid them through rational
policies, the court emphasized that prisons “must at a
minimum supply some evidence that such potential
problems are real, not imagined.” Id. And the court
further concluded that the prison’s history of safety
and its various loopholes to the policy fatally
undermined its claimed security interest. Applying
the same reasoning here, the Eleventh Circuit should
have ruled for PLN, and its failure to do so is
inconsistent with the Ninth Circuit’s holdings in
California First Amendment Coalition.
The Seventh Circuit has likewise required much
greater proof than the Eleventh Circuit did here, and
in much less compelling circumstances. In Brown v.
Phillips, 801 F.3d 849 (7th Cir. 2015), the Seventh
Circuit addressed claims by convicted sex offenders
attacking a prison policy that prohibited them from
accessing movies or video games with sexually explicit
content. With obvious echoes of the FDOC’s position
here, the prison officials in Brown had argued “that
‘common sense’ justifies prohibiting sex offenders from
viewing sexually explicit materials.” Id. at 854. But
the Seventh Circuit rejected that argument, holding
that “some data is needed to connect” the prison’s
goals “with a ban on” otherwise protected speech. Id.;
see also Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir.
2004) (reversing dismissal of First Amendment
challenge to blanket ban on sexually explicit
magazines because mere assertion of rehabilitative
effect was insufficient).
Although the Seventh
Circuit’s decision addressed a ban on sexually explicit
material for specific prisoners, rather than a ban on
Prison Legal News for all prisoners, its holding is only

27
more obvious and more forceful in this context.5 It
cannot possibly be that sex offenders have greater
rights to pornography than Prison Legal News has to
distribute its award-winning publication containing
articles on judicial decisions and other legal issues to
any Florida prisoner.
Many other Circuits have similarly adopted the
same requirement that prison officials come forth with
concrete, experience-based evidence to support
infringements on protected speech. See, e.g., Turner v.
Cain, 647 F. App’x 357, 367-68 (5th Cir. 2016) (holding
that a warden’s failure to “produce[] evidence of any
legitimate penological interest” in restricting parts of
the plaintiff’s speech was enough for the plaintiff to
prevail on the first element of his claim); Wolf v.
Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (holding
that a prison must “‘demonstrate’ that the policy’s
drafters ‘could rationally have seen a connection’
between the policy and the interests” through “more
than a conclusory assertion” to succeed).
The
Eleventh Circuit’s explicit willingness to accept much
less from the FDOC thus places it squarely out of step
with a number of its sister Circuits and this Court.
Rather than let that discord persist and threaten core
The fact that the prisons in Brown did not categorically bar
all sexually-explicit materials for all prisoners as fundamentally
inconsistent with prison administration echoes the FDOC’s
decision to not categorically bar all cash-for-stamps (and other
disfavored) advertisements, but only when they appear in
publications like Prison Legal News, where the disfavored
advertisements are deemed to be prominent or prevalent. In both
cases, the fact that the censored material is not categorically
inconsistent with security concerns rationally increases the
censor’s burden to explain the selective censorship.
5

28
free speech rights of important publications like
Prison Legal News, this Court should grant review.
II. A Correct
Precedents
Petition.

Application of this Court’s
Would Require Relief For

Not only does the Eleventh Circuit’s decision
distort this Court’s precedents and conflict with its
sister Circuits’ faithful application of those decisions,
but in doing so it validates a clearly unconstitutional
ban on PLN’s First Amendment rights. Under this
Court’s precedents, this should not have been a close
case.
The FDOC’s blanket ban of every single issue of
Prison Legal News, at all times and to every
subscriber, based on a prevalence of advertisements
the FDOC will tolerate in small doses, is not rationally
connected to its claimed security interests. The first
Turner factor only weighs in favor of the governmental
regulation when the regulation has a “valid, rational
connection” to a legitimate governmental interest.
App.25. As explained above, a “formalistic logical
connection” is insufficient. Beard, 548 U.S. at 535.
But that is the most the FDOC has offered, and it is
all the Eleventh Circuit required. PLN set forth a
number of reasons why the FDOC’s various loopholes
for primary conduct and its toleration of
advertisements for other conduct forbidden within
prison walls—and even non-prevalent and nonprominent advertisements of the precise type that
formed the basis for the exclusion of Prison Legal
News—undermine its policy. And PLN highlighted
the fact that the “experience-based” evidence cut
strongly against the FDOC, which made no showing

29
that it experienced an uptick in security threats while
allowing Prison Legal News into its prisons, or a
downturn in such threats once it began censoring the
publication again. Yet, the Eleventh Circuit was
satisfied with the FDOC’s unadorned, self-serving
statement that its ban “helps” avoid “potential”
security threats related to certain advertisements.
The second Turner factor considers whether the
prison’s policy allows alternative means for the
challenger to exercise its constitutional rights. It was
undisputed that it would be cost-prohibitive for PLN,
a non-profit nationally distributed publication, to
produce a Florida-specific issue or to produce Prison
Legal News without the problematic advertisements.
Thus, there was no disagreement that PLN possesses
no alternative means for delivering the awardwinning content of Prison Legal News to subscribers
in Florida prisons. In the Eleventh Circuit’s view,
though, that only made this factor a “close call.” And
ultimately the court decided the factor in favor of the
FDOC because PLN could potentially circulate its
other publications instead of Prison Legal News as an
“adequate alternative.” App.35-37.
That analysis is deeply flawed. First, it is mere
happenstance that petitioner even has other
publications that it seeks to share with inmates.
Given the cardinal command of the First Amendment
not to discriminate between speakers, see Reed v.
Town of Gilbert, 135 S. Ct. 2218 (2015), it cannot be
right that the second Turner factor turns on whether
a speaker has other, different publications that are not
censored. In all events, the purposes of PLN’s other
publications are different and thus their respective

30
content is naturally quite different. While its other
publications are more generalized handbooks that
furnish static advice on specific topics, Prison Legal
News is the Human Rights Defense Center’s flagship
monthly magazine, and it offers news on current
events and information about recent legal
developments such as new decisions of this Court or
new findings of abuse in prison systems. It is
markedly different speech aimed at different
objectives. Under the FDOC’s draconian policy, there
is simply no alternative means for PLN to deliver the
content of Prison Legal News to its subscribers in
Florida penal institutions.
The Eleventh Circuit’s extreme deference to the
FDOC’s claimed interests infected its assessment of
Turner’s third factor as well. Accepting the FDOC’s
unsupported assertions about the threats posed by
Prison Legal News’ advertisements, the Eleventh
Circuit held that the advertisements “give inmates the
opportunity to use prohibited services, which creates
security problems,” and that addressing those security
problems would require the FDOC “to allocate more
time, money, and personnel in an attempt to detect
and prevent security problems engendered by the ads
in the magazines.” App.37-38. But, as explained
above, there was no evidence whatsoever that the
FDOC had to bear any of those additional burdens
during the 55-month interregnum between the
FDOC’s censorship of Prison Legal News, let alone
during the nearly two decades that Florida allowed
Prison Legal News into its facilities. Nor did the
FDOC set forth any evidence that any such burden
was lifted when it banned the magazine again in 2009.

31
Finally, the Eleventh Circuit plainly erred in
blessing the FDOC’s alone-in-the-Nation policy as a
measured, rather than exaggerated response to its
asserted (and entirely speculative) security concerns.
The court’s mere observation that “there is no onesize-fits-all approach to prison management” is no
substitute for a careful consideration of the treatment
of Prison Legal News by every other penal institution
in the country. App.41-42. Indeed, such careful
judicial consideration is called for where, as here, the
governmental entity curbing free press rights is the
very entity that is the subject of critical reporting
about abuses within its system. See supra 5. It would
be one thing if Florida’s unique approach was designed
to target some problem arising distinctly or uniquely
in Florida’s prisons, but none of the FDOC’s purported
security concerns are specific to Florida.
The Eleventh Circuit’s failure to meaningfully
consider alternatives was particularly evident in its
dismissal of New York’s practice of affixing a warning
to the front of Prison Legal News as living in “la la
land.” This Court has long held that “the policies
followed at other well-run institutions would be
relevant to a determination of the need for a particular
type of restriction.” Martinez, 416 U.S. at 413 n.14.
And it has not hesitated to reject other states’ outlier
intrusions on fundamental liberties premised on
similarly speculative claims of prison security. Cf.
Holt v. Hobbs, 135 S. Ct. 853 (2015) (“That so many
other prisons allow inmates to grow beards while
ensuring prison safety and security suggests that the
Department could satisfy its security concerns
through a means less restrictive than denying
petitioner the exemption he seeks.”). A careful

32
consideration of the New York practice would
underscore that it is an obvious alternative that more
directly addresses the perceived concern of prison
officials (New York’s disclaimer applies to any
advertisement that proposes a transaction forbidden
by prison rules, whether such advertisements are
prevalent or prominent), and avoids the obvious
prospect of selective censorship with respect to
Florida’s vague “prominent or prevalent” standard.
Especially when First Amendment values are at
stake, deference to prison officials does not extend to
allowing them to use a chainsaw, when a scalpel would
do the trick. When judged against the New York
policy, not to mention the complete lack of
advertisement-based censorship or disclaimers in
every other state prison system, the FDOC’s blanket
ban is the archetype of an exaggerated response to a
perceived problem.
A properly balanced analysis of the Turner
factors, under this Court’s precedents and the
decisions of other circuits necessarily results in the
conclusion that the FDOC’s exaggerated policy lacks a
rational relation to its stated security concerns. Only
by breaking from those precedents and blindly
deferring to the FDOC’s asserted interests, could the
Eleventh Circuit hold otherwise.
III. The Eleventh Circuit’s Decision Is An
Invitation And A Roadmap For Other
Jurisdictions To Curtail Important First
Amendment Freedoms.
While the FDOC’s policy and the Eleventh
Circuit’s decision currently stand alone as outliers,
there is little doubt that they will serve as an

33
invitation and roadmap for other penal institutions
that wish to curtail the important free speech rights of
PLN or other publications. It is only a matter of time
before other penal institutions intent on keeping the
important content in Prison Legal News or other
publications away from inmates replicate Florida’s
policy. And, in the context of other restrictions,
prisons have already begun to rely on the Eleventh
Circuit’s excessively broad view of the deference owed
to prison officials under this Court’s decisions. See,
e.g., Defs’ Resp. in Opp. to Pltf’s Mot. for Prel. Inj. at
8, Human Rights Defense Center v. Sw. Va. Reg. Jail
Auth., No. 1:18-cv-13 (W.D. Va. May 29, 2018) (“[I]n
the case of First Amendment concerns, the Supreme
Court ‘has not adopted a damn-the-deference, fullspeed-approach to First Amendment rights within
prison walls.’” (quoting decision below)). The Eleventh
Circuit’s decision has thus had an immediate, and
predictable, impact in only a matter of months. That
trend will undoubtedly grow if this Court denies
review.
Rather than let the Eleventh Circuit’s
distortion of this Court’s precedents proliferate, the
Court should step in and resolve this important
question now.
Even apart from its tendency to spread to other
jurisdictions, the decision is important and merits this
Court’s review. The decision undeniably means that
thousands of FDOC inmates will not receive a
publication designed to inform them of their legal
right and of abuse within the FDOC system. It plainly
paves the way for censorship of the First Amendment
rights of the many more thousands of individuals
currently detained within the confines of the Eleventh
Circuit. And it harms the First Amendment rights of

34
PLN and others to reach this critical audience and
inform them about legal developments outside of
prison walls and illegal abuses within them. The
decision plainly warrants plenary review.
CONCLUSION
The petition for writ of certiorari should be
granted.
Respectfully submitted,
MICHAEL H. MCGINLEY
DECHERT LLP
1900 K Street, NW
Washington, DC 20006
(202) 261-3300

PAUL D. CLEMENT
Counsel of Record
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, DC 20005
(202) 879-5000
paul.clement@kirkland.com

ROGER A. DIXON
DECHERT LLP
2929 Arch Street
Philadelphia, PA 19104
(215) 994-4000

LINDSAY E. RAY
DECHERT LLP
1095 Avenue of the
Americas
New York, NY 10036
(212) 698-3500

SABARISH NEELAKANTA
MASIMBA MUTAMBA
DANIEL MARSHALL
HUMAN RIGHTS
DEFENSE CENTER
P.O. Box 1151
Lake Worth, FL 33460
(561) 360-2523

DEBORAH GOLDEN
HUMAN RIGHTS
DEFENSE CENTER
316 F Street, NW, #107
Washington, DC 20002
(202) 543-8100

35
DANTE P. TREVISANI
RANDALL C. BERG, JR.
FLORIDA JUSTICE
INSTITUTE, INC.
100 SE Second Street
Suite 3750
Miami, FL 33131
(303) 358-2081
Counsel for Petitioner
September 14, 2018



 

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