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Reply Brief - Prison Legal News v. Secretary, Florida Dept. of Corrections

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No. 18-355
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
________________
REPLY BRIEF FOR PETITIONER
________________
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)
December 18, 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

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
REPLY BRIEF ............................................................ 1
I.

The Eleventh Circuit’s Decision Is Out of Step
With This Court’s Precedents And Other
Circuits’ Faithful Application of Those
Decisions .............................................................. 3

II. The Eleventh Circuit’s Decision is Incorrect ...... 7
III. The Eleventh Circuit’s Decision Has Already
Become A Roadmap For Curtailing Important
First Amendment Freedoms ............................. 10
CONCLUSION ......................................................... 12

ii
TABLE OF AUTHORITIES
Cases
Beard v. Banks,
548 U.S. 521 (2006) .......................................... 2, 3, 7
Beerheide v. Suthers,
286 F.3d 1179 (10th Cir. 2002)............................ 5, 6
Brown v. Phillips,
801 F.3d 849 (7th Cir. 2015)................................ 4, 6
Cal. First Amendment Coal. v. Woodford,
299 F.3d 868 (9th Cir. 2002)................................ 4, 5
Holt v. Hobbs,
135 S. Ct. 853 (2015).............................................. 10
Prison Legal News v. Cook,
238 F.3d 1145 (9th Cir. 2001).......................... 4, 5, 9
Procunier v. Martinez,
416 U.S. 396 (1974) ................................................ 10
Ramirez v. Pugh,
379 F.3d 122 (3d Cir. 2004) ..................................... 6
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015).............................................. 8
Thornburgh v. Abbott,
490 U.S. 401 (1989) .................................................. 3
Turner v. Safley,
482 U.S. 78 (1987) .................................................... 4
Whitney v. Brown,
882 F.2d 1068 (6th Cir. 1989).............................. 5, 6
Wolf v. Ashcroft,
297 F.3d 305 (3d Cir. 2002) ................................. 4, 6

REPLY BRIEF
Since its 2009 about-face, the Florida Department
of Corrections (FDOC) has violated Petitioner’s (and
its advertisers’ and inmates’) First Amendment rights
by rejecting every single issue of Prison Legal News—
totaling over 100 issues in nearly a decade—on the
basis that its advertisements pose a purported
security threat. While this Court has repeatedly held
that First Amendment rights do not end at the prison
gate, that is no longer true in Florida. Florida alone
has identified these purported security concerns, and
Florida alone has seen fit to ban Prison Legal News
based on its advertising content. Yet there is nothing
idiosyncratic about FDOC that would justify its alonein-the-nation policy—although articles about civil
rights violations in FDOC facilities might explain it.
Nor, despite the facts that Prison Legal News
circulated within FDOC for nearly two decades and
continues to circulate in every prison system in the
country including the federal Bureau of Prisons, has
FDOC ever set forth any experience-based evidence to
justify its outlier policy. Throughout its blanket
censorship of Prison Legal News, FDOC has eschewed
numerous other more direct means of addressing its
claimed security concerns. The net result is that
Petitioner is left with no alternative route for
delivering its important content to Florida inmates.
The decision below upheld this blanket censorship
by granting blind deference to FDOC officials’
unsupported conjecture. But that approach is plainly
out of step with this Court’s decisions and other lower
courts’ faithful application of those precedents. Those
decisions categorically require that prisons must come

2
forth with more than a mere speculative connection
between their claimed security interests and their
curtailment of First Amendment freedoms. And this
Court’s most recent apposite decision emphasized that
prison officials’ security claims must be rooted in
experienced-based evidence, rather than speculation.
See Beard v. Banks, 548 U.S. 521 (2006) (plurality).
The absence of experience-based evidence of nonspeculative difficulties is particularly glaring given
the reality that Prison Legal News, complete with its
advertisements, has circulated without incident for
nearly three decades in every other prison system
throughout the country. The question here then is not
whether to defer to the views of prison officials, but
which prison officials merit deference, the speculative
views of current FDOC officials or the experiencebased judgments of countless prison officials who
allow Prison Legal News to circulate in their own
institutions.
The threat to First Amendment values and the
risk that censorship could spread explains the
outpouring of amicus support and underscores the
importance of this Court’s review. Everyone from
publishers, to advertisers, to prison officials, to faith
leaders, to an intellectually diverse array of legal
experts recognizes the threat to free speech and
meaningful review of prison policies posed by the
decision below. Yet, Respondent conspicuously did not
even bother to address their views. If allowed to
stand,
Florida’s
we-don’t-like-your-advertisers
justification for censorship will undoubtedly change
from an outlier to a roadmap for curtailing free speech
rights. Rather than let this constitutional error and
resulting censorship spread, the Court should grant

3
certiorari and invalidate Florida’s unconstitutional
ban.
I.

The Eleventh Circuit’s Decision Is Out of
Step With This Court’s Precedents And
Other Circuits’ Faithful Application of
Those Decisions.

The decision below is fundamentally inconsistent
with this Court’s precedents. For decades, this Court’s
precedents have made clear that First Amendment
rights do not disappear within the prison walls or
outside them, as “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 v. Abbott,
490 U.S. 401, 408 (1989). While courts owe prison
officials some level of deference, their views must be
supported
by
concrete
evidence—not
mere
conjecture—and that deference cannot “mak[e] it
impossible for prisoners or others attacking a prison
policy . . . ever to succeed.” Beard, 548 U.S. at 535.
The limits on deference to prison officials are
especially critical where the officials’ judgment is an
outlier and the restrictions are aimed at outside
publications. See id.; Thornburgh, 490 U.S. at 408.
The decision below ignored these limits by
uncritically deferring to FDOC’s speculation at every
step of the analysis. While intermittently paying lipservice to this Court’s decisions, the Eleventh Circuit
contradicted their main thrust. Rather than requiring
“experience-based conclusion[s],” that demonstrate
more than a “formalistic logical connection” between
the regulation and the purported penological
objective, Beard, 548 U.S. at 533, 535, the Eleventh

4
Circuit credited FDOC’s unsupported assertions that
Prison Legal News’ advertisements “create the
possibility” that prisoners might seek to evade prison
rules, App.29 (quotation mark omitted), and it
endorsed Florida’s draconian response—banning
Prison Legal News in toto—because it “certainly
help[s] advance” FDOC’s penological interests,
App.43 (quotation marks omitted). In a telling
summary of its reasoning, the Eleventh Circuit
proclaimed that FDOC’s bald assertions are “all
Turner [v. Safley, 482 U.S. 78, 90-91 (1987)] requires.”
Id. But Beard, Thornburgh, and Turner require far
more, especially when it comes to outside publications,
outlying policies, and situations where a prison
previously allowed the publication without incident.
The Eleventh Circuit’s extreme deference is out of
step not just with this Court’s precedents but also with
other circuits’ decisions faithfully applying those
precedents. See Prison Legal News v. Cook, 238 F.3d
1145 (9th Cir. 2001) (granting relief to PLN based, in
part, on Oregon ban’s outlier status); California First
Amendment Coalition v. Woodford, 299 F.3d 868, 882
(9th Cir. 2002) (prisons “must at a minimum supply
some evidence that . . . potential problems are real, not
imagined”); Brown v. Phillips, 801 F.3d 849, 854 (7th
Cir. 2015) (“some data is needed to connect” the
prison’s goals “with a ban on” otherwise protected
speech); Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir.
2002) (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 (quotation
marks omitted)); Whitney v. Brown, 882 F.2d 1068,
1074 (6th Cir. 1989) (“prison officials do not set

5
constitutional standards by fiat”); Beerheide v.
Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002) (“prison
officials must present credible evidence to support their
stated penological goals”). Had the Eleventh Circuit
taken the same approach as those other circuits,
FDOC inmates would be reading Prison Legal News
today.
Respondent’s efforts to distinguish these
precedents
factually
cannot
obscure
their
fundamental legal inconsistency with the Eleventh
Circuit’s approach. Indeed, the Eleventh Circuit’s
analysis here could not be more different from the
Ninth Circuit’s approach in Prison Legal News v.
Cook.
Both cases implicated Petitioner’s “core
protected speech.” 238 F.3d at 1149. Yet, in Cook, the
Ninth Circuit refused to defer to prison officials’
justifications for their policy of banning all standard
mail, after properly scrutinizing each unsupported
rationale and noting that Oregon’s policy is a national
outlier. Id. at 1151. By contrast, the Eleventh Circuit
approached FDOC’s justifications with a credulous
eye, adopting its expert’s speculative testimony
wholesale and dismissing Florida’s outlier status as
irrelevant. Likewise, in California First Amendment
Coalition v. Woodford, the Ninth Circuit, while
analyzing a prison policy under Turner, squarely
rejected the prison’s rationales as based on
“questionable speculation.” 299 F.3d at 880.1 And
In fact, the prison official responsible for the policy struck
down in Woodford joined an amicus brief arguing that Florida’s
policy is an unnecessary, illogical, and extreme response to the
state’s claimed security interests. See Former Corr. Officials
Br.27.
1

6
despite their factual differences, the core teaching of
multiple other circuits’ precedents in this area is that,
when applying Turner, a “bare assertion” is not
enough to warrant deference to prison officials.
Brown, 801 F.3d at 854; Wolf, 297 F.3d at 308 (holding
that “more than a conclusory assertion” is required);
Ramirez v. Pugh, 379 F.3d 122 (3d Cir. 2004) (same);
Whitney, 882 F.2d at 1074 (rejecting notion that
“anything prison officials can justify is valid because
they have somehow justified it”); Beerheide, 286 F.3d
at 1190 (“prison officials cannot simply point to any
impact to win their case”).
That is particularly true in light of FDOC’s realworld experience with Prison Legal News. Prison
officials do not need to allow potentially dangerous
contraband to circulate in prisons to back up their
speculation that the items are dangerous. But when a
publication has circulated for decades without
recorded incident, a reprise of censorship cannot rest
on speculation disproved by experience. The Eleventh
Circuit approved just that here.
While no other Circuit has green-lighted an
identical policy of blanket censorship, that is only
because no other prison system has imposed a
comparable ban or engaged in comparable
speculation. Indeed, if there were real-world problems
caused by allowing Prison Legal News to circulate
within prison walls, FDOC could point to concrete
evidence based not only on its own experience in the
nearly two decades it allowed Prison Legal News to
circulate but also based on the experience of every
other prison system in the land. The fact that FDOC
ignored that wealth of real-world experience in favor

7
of speculation and the Eleventh Circuit then deferred
to that speculation underscores that both FDOC’s
policy and the Eleventh Circuit’s decision are national
outliers.
II. The Eleventh Circuit’s Decision is Incorrect.
Under a proper understanding of this Court’s
precedents, Petitioner is plainly entitled to relief.
FDOC’s blanket censorship of Prison Legal News is
not rationally connected to its claimed security
interests. All that FDOC has offered to support its
policy is a “formalistic logical connection” between its
claimed security interests and its blanket ban. Beard,
548 U.S. at 535. But, under this Court’s precedents,
that is not enough.
The only FDOC-specific
“experience-based” evidence in this case—the long
period before FDOC’s censorship began and the 55month interregnum when it allowed Prison Legal
News into the prison before reinstating its ban—
undercuts FDOC’s speculative justification for its
policy. Respondent made no showing that there was
any increase in security threats during either of those
periods, or a downturn in such threats once it began
censoring the publication again.2 And the experience
of the countless institutions that allow Prison Legal
News to circulate without incident only reinforces the
lack of any real problem. Indeed, a group of former
Respondent’s justifications for its 2009 policy change—that
technological developments made it harder to detect three-way
calls or offending advertisements were now appearing on the
back cover—are remarkably weak. Opp.4-5. FDOC had ample
responses to technological advances beyond censorship, and
Prison Legal News circulated nationwide with the back-cover
advertisement and without recorded incident.
2

8
corrections officials (including a former FDOC
Warden) with over three centuries of collective
experience managing prison populations filed an
amicus brief expressing their view that FDOC’s “ban
lacks a valid, rational connection to FDOC’s interests
in prison security.” Former Corr. Officials Br.1, 13-17.
FDOC’s unadorned, self-serving statement that its
ban “helps” avoid “potential” security threats related
to certain advertisements is a prototype of what does
not suffice.
Nor does Petitioner have alternative means of
exercising its constitutional rights with respect to
Prison Legal News.
Like the Eleventh Circuit,
Respondent cannot dispute that its policy prevents
Petitioner from delivering Prison Legal News to
prisoner subscribers because it is cost prohibitive for
Petitioner to publish without advertisements or
publish a Florida-only version of its national
magazine. Instead, again like the Eleventh Circuit,
Respondent argues that Petitioner’s First Amendment
rights are not curtailed because its other publications
might be permitted into Florida’s prisons. See Opp.32.
But Respondent has not claimed that FDOC
consistently allows PLN’s other publications into its
prisons—because it does not. In all events, the First
Amendment does not permit the government to ban a
category of speech with impunity merely because it
does not ban some other category of speech by the
same speaker. Cf. Reed v. Town of Gilbert, 135 S. Ct.
2218 (2015); 18 Orgs. that Favor Freedom of the Press
and Oppose Censorship Br.17-19.3 While their topics
3 While Respondent denies in one breath that the FDOC policy is
content-based, Opp.5, in the next breath it distinguishes Prison

9
are sometimes overlapping, Petitioner’s other
publications are aimed at their own unique topics and
audiences; as a result, their respective content is quite
different. Thus, the fact that PLN produces other
publications does not absolve FDOC of its blanket
censorship of Prison Legal News.
Neither FDOC nor the court below has pointed to
any concrete evidence to support the assertion that
allowing Prison Legal News into Florida prisons would
unduly burden or threaten the safety of guards or
other inmates. Meanwhile, former prison officials
(including a past FDOC Warden) have categorically
informed the Court that it would not. Former Corr.
Officials Br.17, 20-23.
There was no evidence
whatsoever that FDOC had to bear any additional
material burdens during the 55-month interregnum
when it allowed Prison Legal News to circulate or in
the two decades that Prison Legal News circulated
before FDOC first tinkered with censorship. Nor did
FDOC point to burdens in the federal Bureau of
Prisons or correctional facilities across the nation that
do not ban Prison Legal News based on its advertising.
And FDOC set forth no evidence that any such burden
was lifted when it resumed its ban in 2009. Especially
when a policy would uniquely burden speech that
prison officials might be most interested in
curtailing—i.e., news articles concerning civil rights
abuses in prison—officials must do more than assert
speculative security concerns and hypothetical
burdens.

Legal News v. Cook, 238 F.3d 1145, on the ground that the policy
here is based on content. Opp.24.

10
Finally, Respondent has virtually no defense of its
alone-in-the-nation status and failure to consider
obvious alternatives. FDOC’s out-of-hand dismissal of
more targeted alternatives like those adopted by New
York underscores its failure. Opp.10. Pointing out
that Turner is not a least restrictive means test, is no
substitute for explaining why ample less-burdensome
alternatives would not suffice. Similarly, pointing out
that Holt v. Hobbs, 135 S. Ct. 853 (2015), involved an
RLUIPA claim, Opp.18, does not negate Holt’s point
that courts should not defer to prison officials when all
of their counterparts across the nation take a different
view. See Holt, 135 S. Ct. at 866 (citing Procunier v.
Martinez, 416 U.S. 396, 414 n.14 (1974)). Put
differently, when the courts confront an outlier policy
like the one here or the one in Holt, the question is not
whether to defer to prison officials, but which ones
deserve deference. When prison officials at the federal
Bureau of Prisons and in every other state embrace
less restrictive policies despite their real-world
experience with the same issues of Prison Legal News
over the past 28 years, those prison officials are
entitled to a degree of deference as well. And their
actions lay bare the reality that FDOC’s response to
the problem posed by PLN’s advertisements is wildly
exaggerated.
III. The Eleventh Circuit’s Decision Has Already
Become A Roadmap For Curtailing
Important First Amendment Freedoms.
The importance of this case for the First
Amendment rights of publishers, advertisers and
inmates cannot be overstated, as attested by the
wealth of amici supporting plenary review. The

11
speech being suppressed is core protected speech in
the prison context, reporting about legal rights and
civil rights abuse in prisons. It is the functional
equivalent of a ban on reporting about new legislation,
political corruption or police misconduct outside
prison walls. FDOC’s censorship denies prisoners
critical educational materials about their legal rights
and the most important issues facing incarcerated
populations. See, e.g., R Street Inst., Americans for
Prosperity, the Cato Inst., Reason Found., and the
Rutherford Inst. Br.11. Moreover, the uber-deference
applied by the Eleventh Circuit threatens not just
First Amendment values, but all constitutional rights
within prison walls. See, e.g., Faith Orgs. Br.18-26;
Civil Rights Advocacy Org. Br.12-16.
And its
constitutional harm reaches far beyond PLN to injure
its advertisers and subscribers as well. See, e.g.,
American Friends Service Comm. and Other Prison
Legal News’ Advertisers Br.1.
Again seeking to benefit from its outlier status,
Respondent urges the Court to deny review because
its censorship has systematically dwindled PLN’s
subscribers in Florida and no other jurisdiction has
adopted the same blanket ban of PLN based on its
advertisements. Opp.35-37. And it downplays the
likelihood that other jurisdictions will soon follow suit
with the empty observation that they have not done so
yet—in the few months since the Eleventh Circuit’s
decision and while this certiorari petition is still
pending before this Court. But the Eleventh Circuit’s
outlier decision affirming FDOC’s outlier policy
provides a clear roadmap for other jurisdictions to
curtail free speech rights. Denying review of the
decision below will only accelerate that predictable

12
occurrence. This Court should step in now, rather
than let unconstitutional restrictions on core protected
speech proliferate across the country.
CONCLUSION
The Court should grant the petition.
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

13
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
December 18, 2018



 

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