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Florida DOC Clamps Down on Prisoner Writers

by David M. Reutter

In an effort to limit prisoners' free speech rights, the Florida Department of Corrections (FDOC) has taken steps to prohibit prisoners from engaging in a business or profession. For some years now, the FDOC has had on its books a rule that states: "No inmate may establish or conduct a business through the mail during his period of incarceration." See Chapter 33-210.101(7), F.A.C.

On two occasions, the FDOC has used that rule to press disciplinary action against PLN contributing writer David Reutter. On July 19, 2002, the FDOC charged that Reutter attempted to conspire with his sister to conduct a business after it learned Reutter had received payment from PLN for article submissions. The conspiracy was predicated upon Reutter sending his submissions to his sister to type. After serving 22 days disciplinary confinement, the Warden overturned the guilty finding on procedural errors.

Then, on September 9, 2002, FDOC officials again used that rule to charge Reutter with disobeying an order. This time, all appeals to the guilty finding and imposition of 30 days disciplinary confinement and 60 days loss of gain time were denied. That disciplinary report is now the subject of a state court petition alleging there exists no legitimate and neutral peneological interest in barring Reutter from receiving monetary compensation from PLN for his articles. See: Reutter v. Crosby, Case No. 02CA-2830, Florida Second Judicial Court.

Apparently, FDOC felt their rule was vulnerable to attack, for on February 6, 2003, FDOC moved to stay and moot Reutter's petition based upon proposed rule 33-601.203. The proposal defines a business or profession "as any revenue generating or profit making activity or any activity having the potential to generate revenue or profit for the inmate while incarcerated." The rule includes the one-time submission of a single manuscript for publication unless the Warden approves. Because the proposal still prohibits the activity Reutter seeks to engage in, journalistic activity for compensation, the court denied FDOC's motion. PLN will report the results of Reutter's litigation.

In an obvious attempt to assure its proposal withstood on its face judicial scrutiny, the FDOC on May 16, 2003, included a statement in its rule that allowing prisoner business or profession activity increases prisoner interest in business activity, which burdens staff with increased mail and telephone activity. The proposal is winding its way through the administrative adoption process.

Florida prisoners are allowed to receive money so long as it is not revenue from First Amendment activities they engage in. For example, prisoners receive pay from employment in prison canteens and prison industries. The new rules have the intent of chilling prisoners' speech and specifically target writers. Anyone familiar with the publishing business knows that most publishers pay for submissions they accept for print. In fact, the whole intent of the copyright law system is to assure the writer benefits financially and to protect the integrity of their work.

For now, Florida prisoners who engage in writing for compensation are either forced to cease that activity, forego compensation, or risk disciplinary action if they are discovered exercising their First Amendment rights to freedom of speech and expression.

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Related legal case

Reutter v. Crosby