Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Prison Officials’ Determination of Gang Symbols in Outgoing Mail Accorded Deference

The Seventh Circuit Court of Appeals has applied the “substantial deference” doctrine to a prisoner’s claim challenging censorship of his outgoing mail.

After the district court granted summary judgment to prison officials, Wisconsin prisoner Joseph Koutnik appealed that order. His civil rights complaint asserted First Amendment and substantive due process violations. The claim arose after Lieutenant Lebbus Brown confiscated a letter Koutnik attempted to send to Northern Sun Merchandising.

Koutnik’s letter and attachments suggested a line of posters. One of the designs “was a drawing of a swastika textured with the image of cell bars. Above the swastika was the slogan ‘The Department of Corruptions,’ and below it was the slogan ‘Keeping Kids in Kages,’ written with enlarged, stylized capital Ks.”

Lt. Brown concluded the drawing showed Koutnik “was identifying with and trying to promote the growth of white supremacy groups while merchandizing white supremacy material,” which was incompatible with the prison’s efforts to rehabilitate him. The Wisconsin federal district court held that even if Koutnik’s intent was solely to criticize the penal system by associating it with a swastika and the KKK, the prison “was entitled to stop the outgoing mail because it contained those references.”

The Seventh Circuit held the regulation that allowed that censorship, Wisconsin Administrative Code DOC § 303.20(3), was not unconstitutionally vague. Prison officials have some latitude in fashioning rules and “some open-ended quality is essential if a prison is to have any guidelines; it is impossible to foresee all literature that may pose a threat to safety and security.” The Court believed that a reasonable person would understand the regulation to prohibit the symbols Koutnik employed.

The Court then turned to Koutnik’s First Amendment claim, which has a two-prong test. “First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression.” Second, the challenged action “must be no greater than is necessary or essential to the protection” of that interest.

The governmental interest here is the rehabilitation of Koutnik. He claimed that his censored mail did not contain a gang symbol or that “the drawing of a swastika and referencing the Ku Klux Klan in an outgoing letter threatens a prisoner’s rehabilitation.” The Court addressed each claim separately.

It held that the assessment of what is a gang symbol is uniquely suited to prison staff. As such, the court owed “substantial deference to the judgment of [those] prison administrators.”
Finally, the Court held that Koutnik’s correspondence was not “constructive, wholesome contact” that would foster reintegration into society. Rather, “it was an effort to appeal to groups that would hinder, rather than foster, respectful human interaction, both inside and outside of prison.”

Because the confiscation of Koutnik’s outgoing mail did “further the important or substantial interest” in rehabilitation, the district court’s order was affirmed. See: Koutnik v. Brown 456 F.3d 777 (7th Cir. 2006).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Koutnik v. Brown