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BOP Byline Prohibition Unconstitutional

by David M. Reutter

A Colorado federal district court has held the Bureau of Prisons (BOP) regulation that provides a prisoner may not "publish under a byline" violates the First Amendment. The Court's order prohibits the BOP from punishing any prisoner for violating that regulation.

The Court's order comes in an action filed by Mark Jordan, a prisoner at the BOP's Administrative Maximum Unit in Florence, Colorado. The regulation at issue, 28 C.F.R. §540.20(b), provides that "the inmate may not act as reporter or publish under a byline." The BOP punished prisoners publishing under a byline in the "news media," which is defined as newspapers, news magazines, national and international news services, and TV and radio news programs.

Jordan, a prolific writer who has written and submitted for publication manuscripts, essays, letters to the editor, fiction and nonfiction, was found by BOP officials to have violated the byline rule when an article in Off! magazine appeared with his byline. As a result, he was found guilty in a disciplinary hearing of "Unauthorized Contact with the Public." He was infracted again when Off! published another article, but this time under Jordan's religious birth name: Josef Shevitz.

To begin its analysis of the issues, the Court noted that Jordan only had standing to challenge the byline prohibition, but not the regulation's prohibition on acting as a reporter because he had not acted, nor had he been punished for acting, as a reporter.

There are no exceptions to the byline regulation; the only way that a prisoner can be sure that he or she will not violate regulation is to not submit writing to a news media source for publication in the first place. It discourages all outgoing news media correspondence, even that which could, but does not, result in publication or publication under a byline. The effect goes to articles that are excluded from entry into prisons. The chilling effect of the regulation was evident from Jordan's act of refraining from sending outgoing news media correspondence.

The BOP argued the regulation is necessary to prevent the security risk of a prisoner becoming a "big wheel." The Court, however, found a security risk does not invariably arise because a prisoner becomes a "big wheel." In fact, the evidence established that some prisoners are encouraged to become "big wheels" by prison officials in order to showcase them as positive role models.

In addition, no evidence was presented that a prisoner who published under a byline had become a security risk. Moreover, prisoners are encouraged to publish books, poems, or essays. Yet in these circumstances, the BOP perceives no "big wheel" security risk. Thus, the asserted risk is undocumented and speculative.

As for BOP's assertion that a bylined article could incite prison violence, the BOP has the alternative of screening all incoming mail, which is how it learned of Jordan's two articles in the first place. Additionally, BOP's fear that a bylined publication could chill staff speech or make them fear to exercise control over a prisoner for fear of being reported, this is no different than the common problems of staff being intimidated by gang members, muscular or forceful prisoners, or a staff member's inappropriate relationship with a prisoner. The alternative to this is appropriate staff selection, supervision, and training.

Finally, the Court rejected the BOP's argument that the byline regulation is necessary to prevent prisoners from conducting a business. Because the role of a reporter envisions a relationship between the news media and the prisoner that results in compensation, the argument that there is a legitimate penological interest may have more weight if the reporter prohibition was before the Court. But, it was not. The Court found that the BOP already has a regulation that prohibits prisoners from conducting a business, which is an easy and effective alternative to the regulation at issue.

The Court applied the tests in Procunier v. Martinez, 416 U.S. 396 (1974) and Turner v. Safely, 482 U.S. 78 (1987) in deference to the parties, who relied on Turner. The Court held that because the byline regulation dealt with outgoing prisoner mail, the Martinez test applied. Nonetheless, the Court held that under either test the byline regulation fails to pass constitutional muster.

Jordan was ably represented by law students from the University of Denver. Under the supervision of law professor Laura Lee Rovner, students Donald Bounds, Jack Hobaugh, and Michelle Young spent a year successfully litigating the case. See: Jordan v. Pugh, 504 F.Supp.2d 1109 (D.Colo. 2007).

Additional Source: Denver Post

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Related legal case

Jordan v. Pugh