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PI Issued in Arizona Internet Communications Ban

by John E. Dannenberg

On December 16, 2002, the U.S. District Court (D. Ariz.) granted plaintiffs' motion for a preliminary injunction (PI) enjoining the Arizona Department of Corrections (ADOC) from enforcing laws arising from Arizona House Bill 2376 (HB 2376) - an enactment banning Internet-generated communications with prisoners - pending a final determination of the constitutionality of those laws.

The Canadian Coalition Against the Death Penalty and other prisoner advocates sued ADOC Director Terry Stewart for injunctive relief to restrain enforcement of HB 2376 because it violated their First Amendment rights to broadcast their anti-death-penalty message. The court first ruled that although HB 2376 was directed at prisoners, non-prisoner plaintiffs had standing to protect their own rights, citing LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000). ADOC's alternative attempt to bar a PI - grounded in the Prison Litigation Reform Act (PLRA) - likewise failed because of the non-prisoner status of the plaintiffs. The PLRA applies only to "persons confined in prison." (18 USC §3626(g)(2).)

To warrant a PI, the plaintiff bears the burden of showing "either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits were raised and the balance of hardship tips sharply in [their] favor." Additionally, "advancement of the public interest" was ruled to be a relevant claim here. As to making a showing of success on the merits for a constitutional complaint implicating rights of both prisoners and outsiders, the four-part test of Turner v. Safley, 482 US 78, 87 (1987) was applied to determine if the regulation was "reasonably related to legitimate penological interests."

The court found that plaintiffs had shown a "strong likelihood of proving the Turner test had not been met by HB 2376." ADOC had argued that prisoners would use the Internet to defraud the public and have inappropriate contact with victims and minors. But this argument failed - because prisoners can already attempt to do that via US Mail - which the prison regularly inspects. Since no prisoner has direct access to the Internet, scanning mail would still provide ADOC the security it seeks. The only restriction that could lawfully be imposed - if a proper burden were shown - would be the restriction of the quantity of all mail prisoners could receive (citing Crofton v. Roe, 170 F.3d 957, 960 (9th Cir. 1999)). As to ADOC's alternate concern that prisoners could use phone calls to get others to post Internet messages, the court observed that all such calls are monitored. Lastly, ADOC's argument that preventing Internet mail would serve retributive punishment goals was rejected as "speculative."

The court focused on the fact that even minimal interruption of First Amendment freedoms "unquestionably constitutes irreparable injury" (citing Elrod v. Burns, 427 US 347, 373 (1976)) and that granting a PI to foreclose such injury is "a compelling public interest." Accordingly, the court enjoined "Defendant, [his] employees, agents, servants, attorneys and all other person acting in concert with Defendant from directly or indirectly enforcing HB 2376." See: Canadian Coalition Against the Death Penalty, et al. v. Stewart, No. CIV 02-1344-PHX-EHC, Order, Dec. 16, 2002. [A PLN, Nov. `02 article details HB 2376 ban and lawsuit]. See also: Clement v. Gomez, 220 F.Supp.2d 1098 (ND CA 2002), permanent injunction issued against California internet mail ban [PLN Feb.'03].

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Related legal case

Canadian CADP, et. al. v. Stewart