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Court Orders Trial on Challenge to BOP’s Byline/Reporter Prohibition

A Colorado federal district court has ordered a trial in a federal prisoner’s challenge to 28 C.F.R. §540.20 (b), which provides, in relevant part, that an “inmate may not act as reporter or publish under a byline,” on First Amendment grounds.

In January 2006, the Bureau of Prisons (BOP) moved to dismiss the action as moot because the BOP was “in the process considering whether interpretive language should be added to its Program Statement regarding” §504.20 (b). The BOP then implemented two Institution Supplements that provided “[a] column or article published under a byline alone is not prohibited conduct,” and required staff to “examine the relationship between the inmate’s activities and the inmate’s contracts with the news media.”

Based upon those changes, the Court dismissed all of the prisoner’s “as applied” claims, leaving only the facial challenge to §540.20 (b). Ten day before trial, BOP issued a memorandum to, again, moot the action. That memo said that disciplinary action for a prisoner’s writing should not issue unless there is a “factual basis” to conclude the writing jeopardizes BOP’s “legitimate peneological interests in maintaining safe, secure, and orderly operation correctional institutions, or protection of the public.”

The Court delayed trial, but ultimately held after briefing that the memorandum’s effect must be determined at trial and the constitutionality of the regulation in light of it. The Court then set a new trial date. See: Jordan v. Pugh, 2006 U.S. Dist Lexis 66732 (D. Colo. 9/6/2006). The court subsequently held the policy was unconstitutional and enjoined it.

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Related legal case

Jordan v. Pugh