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Colorado Settles Mail Censorship Lawsuit with Due Process Guarantees

by Bob Williams

Guaranteeing due process, training, and a centralized review committee for appeals, the Colorado Department of Corrections (CDOC) has settled a 2000 lawsuit brought by publishers and prisoners challenging a system-wide practice of unconstitutional censorship.

The 42 U.S.C. § 1983 suit was originally filed on March 22, 2000, by eight publishers, the Association of Alternative Newsweeklies, and seven Colorado state prisoners. [See: PLN Sep. 2000, p. 25] At issue was the arbitrary, erratic, inconsistent and irrational regime of censorship that repeatedly violated the constitutional rights of publishers as well as prisoners," according to Colorado ACLU legal director Mark Silverstein.

The suit challenged censorship of eight publications of the publisher plaintiffs, 11 additional magazines, and six books including a sign language book intended for a prisoner to use to communicate with a hearing-impaired visitor. This was only a sampling of censored material which also included political commentary from both the left and right; religious periodicals and music magazines; critiques of the criminal justice system; publications that advocated for prisoner's rights" and even a report by the European Parliament or a book criticizing hate groups by the Southern Poverty Law Center.

Publishers have a First Amendment right to reach their audiences, including prisoners," said Gwen Young, an ACLU volunteer attorney who served as co-counsel. Although prisoners have violated the law, they still have a First Amendment right to read and obtain access to ideas and information.

The First Amendment claims included a vague and over-broad Administrative Regulation (AR) 300-26 and improper censorship against the publishers and prisoners. The Fourteenth Amendment claims included due process for both the publishers and prisoners.

In practice, under the old AR, materials were confiscated with the prisoner and not the publisher sometimes notified but not always told the reason for the confiscation. Next, the material was sent to a reading committee that met sporadically or, alternatively, the material was just passed around several staff members. If rejected, the entire material was shipped out or destroyed. A prisoner could file a grievance, but the material was gone and the grievance answered without any review of the censored material. During the pendancy of this suit an appeal process was added to the confiscation form but was nothing more than a prisoner making a feeble attempt to write to an administrator at the CDOC's Colorado Springs Central Office. These were routinely denied and again, without the benefit of actually viewing the Material. The whole futile process took many months.

Under the new AR 300-26 No reading material may be rejected solely because its content is religious, philosophical, political, social, or sexual or because of its religious, philosophical, political, or social views, its sexual content, or because its content is unpopular, repugnant, or critical of the [CDOC] or other government authority.

Material that can be rejected include those dealing with the design and manufacture of firearms or explosives; or advocating hatred or violence against an individual or group based on race, religion, nationality, sex, or ethnicity; or advocating gang activity (sign languages or style of dress alone may no longer form the basis for rejection); sexually explicit material; and material advocating a facility disruption or non-compliance with prison rules.

It's troubling to note that the former AR specifically permitted sexually-oriented magazines and periodicals" (with mental health approval where necessary) while the new AR allows for the blanket rejection of sexually explicit material.

Once rejected, the prisoner must be notified within ten days of the material's arrival. The reason for the rejection must be specifically identified, though this is still only sporadically done as of February 2005. The local facility reading committee must meet at least bi-weekly with each member independently reviewing the material. Within five working days of the committee's decision the facility administrative head independently reviews the material and the committee's recommendation.

If still rejected, the prisoner is provided with a one-time appeal within 12 working days. The material must be preserved throughout the appellate process and copies for up to five years, regardless of any pending litigation. This appeal also exhausts all administrative remedies (no grievances allowed). The publisher must also be notified at this point. The prisoner has ten days to appeal and the publisher 30 days. The appeals go to the Central Reading Committee at the CDOC Central Office. This committee is composed of two wardens plus representatives of legal services, Sex Offender Treatment & Monitoring Program, religious services and intelligence office. This committee is to meet monthly and provide publishers and prisoner with written decisions within 30 days.

The material may be allowed in its entirety or up to four objectionable pages may be removed if not approved; five or more pages require rejecting the entire material.

Additional settlement points include guard training with ACLU input, application of the settlement and new AR to state and private prisons under state contract, a two-year ACLU monitoring period and no substantial modifications to the AR for two years without ACLU consent. The settlement became effective August 10, 2004, and the new AR effective October 06, 2004. The CDOC agreed to fees and costs but, according to Mark Silverstein, the fee awards will be many moons away" (PLN will report on the award). In addition to Gwen Young, the plaintiffs were represented by Hugh Gottschalk, an ACLU cooperating attorney at Wheeler Trigg Kennedy who led the litigation team. See: New Times, Inc. v. Ortiz, USDC D CO, Case No. 00-F-612.

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Related legal case

New Times, Inc. v. Ortiz