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

FDOC Pen Pal Advertising Ban Passes Constitutional Scrutiny

by David M. Reutter

In January 2011, a federal district court granted summary judgment to the Florida Department of Corrections (FDOC) in a lawsuit challenging FDOC rule 33-210.101(9), Florida Administrative Code, which prohibits prisoners from advertising for pen pals or receiving correspondence from organizations that provide such services.

The suit was filed by Joy Perry, who operates non-profit pen pal services called Freedom Through Christ Prison Ministry and Prison Pen Pals, and by the for-profit, Inc. (WAP).

Perry’s services are both religious and secular; her prison ministry is free, connecting prisoners and persons on the outside. The purpose of her ministry is to reach prisoners who desire to learn about the Gospel of Christ through the exchange of letters.

WAP charges $40.00 per year to place personal ads seeking pen pals on the Internet. The fee includes printing out any email correspondence sent to prisoners and forwarding it via U.S. mail. WAP also assists prisoners in successfully re-entering society by allowing them to post a résumé free of charge.

Perry and WAP alleged free speech violations under the First Amendment and due process violations under the Fourteenth Amendment. Freedom Through Christ Prison Ministry also claimed violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Florida Religious Freedom Restoration Act of 1998.

After the parties had engaged in discovery, both moved for summary judgment. The FDOC argued that the plaintiffs’ “free speech claims are nothing more than cleverly disguised attempts to assert a third party’s (namely the prisoners’) rights.” The court held that insofar as any third parties’ rights were asserted, the plaintiffs lacked standing to bring such claims.

However, the district court rejected the FDOC’s argument that the plaintiffs had not suffered an injury-in-fact. It held that both prisoners and non-prisoners “have a First Amendment interest in correspondence sent to one another,” and the FDOC’s ban on mail sent from the plaintiffs to prisoners “established that a concrete, legally protected interest that they enjoy has been harmed.”

The court applied the four-prong test in Turner v. Safely, 482 U.S. 78 (1987) to determine whether the “no pen pal” rule withstood constitutional scrutiny. The district court accepted the FDOC’s argument that the rule was necessary to prevent prisoners from scamming the general public. The court noted that the FDOC had produced an “abundance of evidence” that prisoners’ use of pen pal services had “led to widespread fraud schemes throughout the country.” The court also credited the testimony of former FDOC employee Steven Arnold, who said “such scams were common in the FDOC system” before the rule’s enactment in 2004. His testimony was accepted despite “Arnold’s inability to point to a specific instance of a scam.”

“Additionally, the large amounts of money that are collected by inmates through these scams threatens internal prison security,” the district court wrote. “Indeed, it is not farfetched to envision a prison climate wherein large amounts of money was present and was rife with extortion, bribery and the purchasing of various ‘services.’”

As such, the court decided the FDOC rule barring pen pal services had a “valid, rational connection” to a legitimate penological interest. It also found the plaintiffs could individually write to or visit prisoners, thus an alternative means of expression existed.
Additionally, WAP could modify its return address to distinguish its résumé service, which was permissible, from its pen pal service, which was disallowed under the rule.

The district court further held that Perry had no standing to bring a RLUIPA claim because RLUIPA applies only to institutionalized persons, and that the FDOC was entitled to sovereign immunity on her state law claim. The court also found there were no due process violations in the procedures used to protest the FDOC’s censorship of pen pal services.

The FDOC’s motion for summary judgment was granted and the plaintiffs’ motion was denied. Costs of $3,412.35 were assessed against Perry and WAP on July 15, 2011. This case is presently on appeal to the Eleventh Circuit. See: Perry v. Hicks, U.S.D.C. (M.D. Fla.), Case No 3:09-cv-00403-MMH-JRK.

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

Perry v. Hicks