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PLN Amicus Brief, Williams v. Donald, US District Court case, Georgia DOC ban on internet downloads, 2005

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

DANNY WILLIAMS

)
)
Plaintiff,
)
)
v.
)
)
JAMES E. DONALD, Commissioner )
Georgia Department of
)
Corrections,
)
And Warden VICTOR WALKER
)
)
Defendants.
)

CIVIL ACTION FILE
NO. 5:01-CV-292-2(DF)

MEMORANDUM OF AMICUS PRISON LEGAL NEWS IN SUPPORT OF
PLAINTIFF DANNY WILLIAMS’S MOTION FOR SUMMARY
JUDGMENT

I.

INTERESTS OF AMICUS

Amicus Curiae Prison Legal News (“PLN”) publishes a 48-page monthly
magazine providing cutting-edge review and analysis of prisoner rights, prisonerrelevant legislation and court rulings, and news about general prison issues. This
information helps prisoners and other concerned individuals and organizations
protect prisoners’ rights, and has been characterized as “core protected speech.”
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001). Founded in
1990 by two prison inmates with a budget of $50 and access only to a typewriter

and a prison law library, PLN is now a non-profit corporation with four full-time
and two part-time employees, based in Seattle, Washington.
PLN subscribers and readers include state and federal prisoners, civil and
criminal trial and appellate attorneys, judges, public defenders, journalists,
academics, paralegals, prison rights activists, students, family members of
prisoners, concerned private individuals, politicians and government officials. As
of November 2005, PLN had 4,600 subscribers; roughly 65% of those subscribers
are state and federal prisoners, representing prisoners from every state including
Georgia.
PLN maintains a stable of regular contributing writers, most of whom are
imprisoned. These writers rely extensively on the Internet for much of their source
material. Further, PLN relies heavily on the Internet for publicity and distribution.
PLN’s website currently has all 185 issues of PLN online in PDF format as well as
in a searchable database, and contains the full case text of more than 4,000 prison
and jail related court rulings. PLN’s website (www.prisonlegalnews.org) also
includes legal briefs and other informational material of use to prisoners and
prisoner-rights activists. PLN’s website is specifically designed to make all of its
content easy for users to print hard copies and mail to prisoners who do not have
direct Internet access.

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PLN has litigated the speech rights of prisoners and their correspondents in
order to preserve its own ability to accurately report and effectively distribute legal
news relevant to prisoners. See, e.g., Prison Legal News v. Cook, 238 F.3d at 1149
(challenge to a prison regulation banning standard or “bulk” mail); Prison Legal
News v. Schumacher, USDC OR, Case No. 02-248-MA (negotiated settlement
with Oregon Department of Corrections under which all mailings from PLN will
now be delivered to prisoners regardless of postal classification); Jacklovich v.
Simmons, 392 F.3d 420 (10th Cir. 2004); and Prison Legal News v. Lehman, 397
F.3d 692 (9th Cir. 2005).
Because of its reliance on the Internet in its mission to provide timely and
accurate legal news to prisoners and concerned citizens, PLN has a strong interest
in defending the right of prisoners to receive mail containing speech printed from
the Internet, and the corresponding right of non-incarcerated citizens to send it.
II.

ARGUMENT

Prisoners have a First Amendment right to receive information by mail. See
Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977).
To be constitutionally valid, prison regulation of incoming mail must be
reasonably related to legitimate penological interests. See Turner v. Safley, 482
U.S. 78, 89 (1987).

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This case presents the simple question of whether prison officials may
prevent prisoners from receiving information via ordinary postal mail simply
because that information had been downloaded from the Internet. Under the policy
at issue here, a Georgia state prisoner may not receive a printout from an article on
a newspaper’s website from his or her family or friends. However, if those same
family or friends were to take that exact same article and hand-copy it into a letter,
the prisoner would be permitted to receive it.
PLN respectfully submits that this policy is not rationally related to any
legitimate penological interests. The government’s arguments – that Internet
materials will present a special risk of contraband and flood the mailroom – are
either illogical or unsupported by any evidence.

Equally importantly, much

information today is available only on the Internet. And even when information is
available from non-Internet sources, Internet sources are often easier and cheaper
to use – an important consideration for those of modest means, whether a small
non-profit group like PLN or a prisoner’s friends and family.

The Georgia

Department of Corrections’s (“GDOC’s”) blanket ban on receipt of Internet
materials by ordinary post therefore significantly reduces prisoners’ access to
valuable information without providing any penological benefit.

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Accordingly, PLN urges that this Court find that the GDOC’s policy violates
Danny Williams’ First Amendment rights and grant his motion for summary
judgment.
A.

Prisoners have a First Amendment right to receive mail.

Prison inmates do not surrender their First Amendment rights merely
because they are incarcerated. “Prison walls do not form a barrier separating prison
inmates from the protections of the Constitution, nor do they bar free citizens from
exercising their own constitutional rights by reaching out to those on the inside.”
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (internal quotations and citations
omitted).

Therefore, a prison regulation that infringes inmates’ constitutional

rights is valid only if it “reasonably related to [the prison’s] legitimate penological
interests.”

Turner, 482 U.S. at 89. Turner defines the relevant test of

reasonableness:
First, there must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to
justify it. . . . A second factor . . . is whether there are alternative
means of exercising the right that remain open to prison inmates. . . .
A third consideration is the impact accommodation of the asserted
right will have on guards and other inmates, and on the allocation of
prison resources generally. . . . Finally, the absence of ready
alternatives is evidence of the reasonableness of a prison regulation.
By the same token, the existence of obvious, easy alternatives may be
evidence that the regulation is not reasonable, but is an exaggerated
response to prison concerns.

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Id. at 89-90 (internal citations omitted) (emphasis added). See also Thornburgh,
490 U.S. at 413-14 (holding that the Turner test applies to a prison’s regulation of
incoming mail).
Several

courts

have

found

that

policies

like

the

GDOC’s

are

unconstitutional. See, e.g., Clement v. California Dep’t of Corrections, 220 F.
Supp. 2d 1098, 1108-14 (N.D. Cal. 2002), aff’d 364 F.3d 1148 (9th Cir. 2004)
(holding that a regulation prohibiting inmates from receiving mail containing
material downloaded from the Internet was unconstitutional); Lindell v. Frank, 377
F.3d 655 (7th Cir. 2004) (holding that under Turner, a prohibition on mail
containing newspaper clippings and photocopies was invalid). Under the Turner
test, prohibiting all mail that contains information printed from the Internet is not
reasonably related to the Georgia prison system’s legitimate penological interests.
B.

There is no rational connection between the ban on Internetgenerated mail and the reasons the government puts forward for
that ban.

Under Turner, there must be a “rational connection between the prison
regulation and the legitimate governmental interest put forward to justify it.”
Turner, 482 U.S. at 89. In Prison Legal News v. Cook, 238 F.3d at 1151, the court
held that if this first Turner factor alone is not met, then the policy will be
unconstitutional. When challenged, “[p]rison authorities cannot rely on general or

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conclusory assertions to support their policies.” Walker v. Sumner, 917 F.2d 382,
386 (9th Cir. 1990). Even if their concerns are legitimate, exaggerated responses
are unacceptable.

Turner, 482 U.S. at 90. Rather, Defendants must at least

advance a connection between their policy and the asserted goal that is not “so
remotely connected … as to render the policy arbitrary or irrational.” Harris v.
Thigpen, 941 F.2d 1495 (11th Cir. 1991) (quoting Turner, 482 U.S. at 88-89).
They have not done so.
1.

There is no common-sense connection between the ban on
Internet-generated mail and the government’s fear of
contraband in personal mail.

The government’s fear that friends or family of prisoners will be able to
transmit contraband more effectively through material generated off the Internet is
unfounded. For instance, a “6 page letter written to a man in woman’s hand writing
with perfume and smiley faces and flowers drawn on it . . . would be much more
effective in the current methods of screening content” than would altering a web
page, which would likely require “someone with training and at least one year of
experience in HTML.” Cherry Decl., Exh. G to Plaintiff’s Motion for Summary
Judgment, ¶¶ 12-13.

Indeed, mail room staff at Hancock State Prison allow

typewritten letters from family members, Donald Dep., Exh. B to Plaintiff’s
Motion for Summary Judgment, at 56, and do not read personal letters for content.

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Rather, they flip through such letters, checking for forbidden materials such as
pornography, prison schematics, or hate mail.

See Glover Dep., Exh. N to

Plaintiff’s Motion for Summary Judgment, at 8-9; Brown Dep., Exh. L to
Plaintiff’s Motion for Summary Judgment, at 17.

The government offers no

reasons that these procedures would be less effective for Internet-generated
material than for handwritten or typewritten letters.
While the government asserts that the Internet contains much information it
does not want reaching prisoners, Adams Dep., Exh. C to Plaintiff’s Motion for
Summary Judgment, at 13, it has not shown that rejecting Internet-generated mail
will stop the flow of this information. Even if Internet content is not allowed into
Georgia prisons, the information is still available to those who correspond with
prisoners. “Inmates can obtain illegal information through a variety of channels
while incarcerated, i.e., visits with friends and family members, telephone calls,
unscreened mail, etc.,” all of which are available to Georgia prisoners. Romine
Decl., Exh. F to Plaintiff’s Motion for Summary Judgment, ¶ 23.
Finally, as in Canadian Coalition Against the Death Penalty v. Ryan, prison
officials already have policies in place that directly address the claimed interest.
See Ryan, 269 F. Supp. 2d 1199, 1202 (D. Ariz. 2003). The GDOC’s standard
operating procedures already specifically prohibit mail that contains contraband,

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including “materials featuring nudity,” as well as any publication that “depicts,
encourages, or describes methods of escape,” “is written in code,” or “encourages
or instructs in the commission of criminal activity,” regardless of whether that
material came from the Internet. Georgia D.O.C. Standard Operating Procedures
for Inmate Mail and Receipt of Funds, Exh. I to Plaintiff’s Motion for Summary
Judgment, at 12 [hereinafter Mail SOP]. Without evidence that current procedures
are insufficient when applied to Internet-generated mail, a blanket source-based
restriction is not a rational way to further that interest. See Ryan, 269 F. Supp. 2d
at 1202.
2.

There is no common-sense connection between the ban on
Internet-generated mail and Defendants’ concern over mail
volume.

Defendants maintain that accepting Internet-generated mail would result in a
“sheer volume that makes it almost impossible to manage,” Donald Dep., Exh. B to
Plaintiff’s Motion for Summary Judgment, at 56. Defendants have not provided
any evidence of the volume of Internet-generated mail that was received before the
policy was put in place, or of the amount of mail that is currently rejected because
of its origins on the Internet. Yet even if the Internet ban did result in a substantial
reduction in volume, and as the court in Clement recognized, “[p]rohibiting all

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Internet-generated mail is an arbitrary way to achieve a reduction in mail volume”
when volume can be regulated directly. Clement, 364 F.3d at 1152.
C.

The ban on Internet-generated mail leaves prisoners with no
alternative means of accessing valuable speech that is actually or
practically available only online.

The second Turner factor asks “whether there are alternative means of
exercising the right [in question] that remain open to prison inmates.” Turner, 482
U.S. at 89-90. Here, that right is access to constitutionally protected information
and expression that comes from outside the prison walls. As the trial court in
Clement pointed out, and the Ninth Circuit approved, “certain information of
particular interest to prisoners is only available on the Internet.” Clement, 220 F.
Supp. 2d at 1112. The ban on Internet-generated mail prevents prisoners from
getting information that is available only online, whether actually or practically,
leaving no alternative means of access to that information.
For instance, the ban on Internet-generated mail prevents PLN from
providing its incarcerated writers with the source materials needed to accurately
report on prison legal issues. It also stops PLN from reaching the very people who
can most use the information they disseminate. To enable imprisoned writers to
adequately research and report on an assignment, PLN typically must send source
material, including news articles, case law, and commentary, via mail. To the

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extent resources allow, PLN also sends such materials to prisoners who request
them, regardless of whether they are contributing writers. Additionally, since
PLN’s back issues and other legal materials are on their website, prisoners’ friends
and family can print out relevant material and mail it to them. If Internet-generated
mail is not allowed, then PLN will not only be unable to provide the necessary
source materials to its writers, but will be unable to provide those same materials to
prisoners who require them for their own legal needs.
The countless online resources concerning the law, medicine, religion, and
an untold number of other topics often contain unique material that is unavailable
in print publications. Additionally, many printed publications and public records,
although technically available in the offline world, are out of print, or otherwise
difficult to obtain because only available from geographically far-flung research
libraries or government offices, and therefore only practically available to most
people online. Such “Internet-only” documents could prove crucial to a prisoner
for succeeding in an appeal, maintaining his health, or even saving his soul.
For timely access to new statutes and legal opinions, which is especially
important to PLN’s work, Internet access is a must. For example, both the U.S.
and Georgia Supreme Courts release their decisions online before they ever appear
on paper (at www.supremecourtus.gov and www.gasupreme.us, respectively). The

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Westlaw online database provides access to the briefs filed in appellate cases –
documents which would otherwise only be available directly from their respective
courts. The online service Findlaw (www.findlaw.com) offers a free, searchable
database of state and federal cases and statutes, as well as legal commentary
(writ.news.findlaw.com) and legal news (news.findlaw.com) that is published
nowhere else. Online legal “blogs” such as SCOTUSblog (www.scotusblog.com)
and How Appealing (legalaffairs.org/howappealing/) contain up-to-the-minute
legal news and analysis, and are not published in hard copy. In short, Internet
sources are critically important for timely reporting on new court decisions and
statutes that have not yet been published on paper. Without the ability to get
information from these Internet-based sources to its writers and readers, PLN and
other online sources of legal information cannot fulfill their missions.
In addition to accessing legal information, many people use the Internet to
share their religious views and values. Much of this material is not available
offline, or is available for free only online. For instance, the Internet Sacred Text
Archive (www.sacred-texts.com/index.htm) is a free online service that contains
the primary texts and supporting materials about all major world religions. The
primary texts generally must be purchased in book form, while much of the
supporting material is not available in print at all.

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The Internet has also become most people’s first step when researching an
illness.

As AIDS is one of PLN’s most important issues, online medical

information is of particular value. Offline medical information is often expensive,
difficult to locate, bulky, and out of date. By contrast, websites such as the U.S.
government’s own AIDSinfo website (www.aidsinfo.nih.gov) offer current, free,
targeted information from expert sources. Users of free medical websites can
search for and learn about diseases, symptoms, drugs, treatments, and preventive
measures. A printout from one of these websites could quickly apprise a prisoner
of the resources available online and enable him to request further information for
his friends or family to send along. Many health sites also offer e-mail newsletters
tailored to a subscriber’s individual interests and concerns. For instance, a prisoner
interested in quitting smoking and the latest discoveries in cancer treatment could
have a friend regularly print and mail a short, individualized newsletter covering
those topics (lungnews.kintera.org).
Just as electronic documents are replacing paper and online discussion is
supplementing real-world dialogue in ways that ignore geography, digital pictures
are transcending the limits of traditional film photography. Before being printed,
such pictures usually must pass through a computer, and are often shared with
others via attachment to e-mail or posting on the Internet. Digital pictures taken by

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most camera-phones must be sent by e-mail to reach a printer, and such cameras
are quickly becoming as common here as they are overseas. There is no reason
why a prisoner’s access to pictures of a family reunion or child's school recital
should be limited based on the manner in which his relatives choose to capture and
then to share the information.
In sum, a variety of educational, legal, and religious materials are primarily
or only available on the Internet, and families are communicating increasingly
using the Internet. Prisoners should not be completely cut off from these valuable
sources of information and communication based on a misinformed and overly
broad ban on all materials that happen to be printed from the Internet.
D.

Allowing Internet-generated mail into Georgia prisons will have
minimal impact on the functioning of the prison system.

The third Turner factor asks what “the impact 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. The government
has made no allegation that allowing Internet mail into the prisons will have any
adverse effect on the guards or other inmates. They rely only on unsubstantiated
claims that Internet-generated mail would be harder to screen for contraband and
increase the volume of mail that must be screened.

As in Clement, “[t]he

prohibition at issue here is an imperfect and arbitrary substitute for regulating
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quantity of mail. Whatever impact increased mail volume may have on prison
resources cannot justify [the] ban on materials generated from this particular
source.” Clement, 220 F. Supp. 2d at 1112. Even if the amount of mail received
by prisoners would increase if Internet-generated materials were permitted, there
are other, less arbitrary methods to reduce mail volume and screen its content than
a blanket source-based ban.
E.

The presence of ready alternatives to filtering all Internetgenerated mail is evidence of the policy’s unreasonableness.

The fourth Turner factor states that “the absence of ready alternatives is
evidence of the reasonableness of a prison regulation” but that “the existence of
obvious, easy alternatives may be evidence that the regulation is not reasonable.”
Turner, 482 U.S. at 90. If limiting mail volume is truly a legitimate penological
interest, there are “obvious, easy” alternatives to a ban on Internet-generated
materials. Just as the trial court in Clement observed, “[b]ecause the prison may
directly regulate the quantity of pages or the number of pieces of mail received by
each prisoner, Defendant’s policy of identifying an arbitrary substitute for volume
and regulating that substitute lacks any rational basis.” Clement, 220 F. Supp. 2d
at 1110.
The standard operating procedures for mail specifically state that
“[i]nmates/probationers may correspond with any person with no limitation on
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number or volume of letters.”

Mail SOP, Exh. H to Plaintiff’s Motion for

Summary Judgment, at 8. However, the government admits that it is feasible to
limit either the number of pieces of mail or the number of pages of mail that a
prisoner received. Donald Dep., Exh. B to Plaintiff’s Motion for Summary
Judgment, at 56-59. The government has no rational reason to choose an arbitrary
policy based on the source of the mail rather than one that directly addresses its
concern: volume. The existence, simplicity, and less arbitrary nature of these
alternatives is further evidence that the policy of preventing prisoners from
receiving any Internet-generated mail is irrational, and is both unnecessary and
ineffective in meeting the penological interests of the prison system.
III.

CONCLUSION

The GDOC’s ban on mail that is printed from the Internet is not rationally
related to its legitimate penological concerns, and prohibits prisoners from
accessing valuable information that they have no practical means of accessing
otherwise. For these reasons, PLN urges that the Plaintiff’s motion for summary
judgment should be granted.

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Respectfully submitted this 14th day of December, 2005.

/s/Sarah M. Shalf
Sarah M. Shalf
Georgia Bar No. 637537
Email: shalf@bmelaw.com

BONDURANT, MIXSON & ELMORE, LLP
3900 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 881-4100

OF COUNSEL
Kevin Bankston
California Bar No. 217026
Email: bankston@eff.org
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, California 94110
(415) 436-9333
Attorneys for Amicus Prison Legal
Foundation

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CERTIFICATE OF SERVICE
I hereby certify that I have electronically filed MEMORANDUM OF
AMICUS PRISON LEGAL NEWS IN SUPPORT OF PLAINTIFF DANNY
WILLIAMS’ MOTION FOR SUMMARY JUDGMENT with the Clerk of
Court using the CM/ECF system which will automatically send email notification
of such filing to the following attorneys of record:
Jennifer Brooke Savage
Email: brooke.savage@khlaw.com
Mary Ann Oakley
Email: maryann.oakley@hklaw.com
Holland & Knight LLP
2000 One Atlantic Center
1200 West Peachtree Street, N.W.
Atlanta, Georgia 30339

Kevin T. Brown
Email: ktbrown@sell-melton.com
Sell & Melton, L.L.P.
Mary Elizabeth Hand
Email: mbh@sell-melton.com
P.O. Box 229
Macon, Georgia 31202

This 14th day of December, 2005.

/s/Sarah M. Shalf
Sarah M. Shalf
Georgia Bar No. 637537
Email: shalf@bmelaw.com

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