Ninth Circuit Applies Turner Test to Evaluate First Amendment Interest in Prisoners’ Receipt of Unsolicited Publications
Receipt of Unsolicited Publications
by Mike Brodheim
On January 31, 2011, a divided Ninth Circuit panel reversed the grant of summary judgment to two California sheriffs who had adopted mail policies that prevented detainees in their county jails from receiving unsolicited publications – or at least those publications that the sheriffs did not want to distribute.
In doing so, the Ninth Circuit majority determined, first, that “a publisher has a First Amendment interest in distributing, and inmates have a First Amendment interest in receiving, unsolicited publications.” The Court of Appeals then applied the four-factor test of Turner v. Safley, 482 U.S. 78 (1987) to evaluate whether that “interest” gave rise to a protected First Amendment right in light of the countervailing interests of jail administrators. The Court concluded that it could not determine, as a matter of law, that the sheriffs were justified in banning the distribution of unsolicited publications to jail prisoners.
In dissent, Ninth Circuit Judge N. Randy Smith opined that because a jail (like a prison) is not a “public forum,” no First Amendment interests were implicated, and therefore the Turner test was inapplicable.
In 2002, former bail bondsman Ray Hrdlicka began publishing Crime, Justice & America (CJA), a publication addressing criminal justice-related topics (such as the steps between arrest and conviction) relevant to jail detainees. CJA’s revenues derive not from subscriptions but rather from the ads it runs for bail bond agents and lawyers.
Currently distributed in jails in more than 60 counties in 13 states, including 32 county jails in California, CJA relies on one of two methods of delivery depending on whether or not a jail agrees to accept general distribution. If it does, CJA delivers weekly supplies of magazines that jail staff leave in common areas of the facility; otherwise, CJA mails individually addressed issues to about 10% of the jail population after obtaining a detainee roster.
The Butte County Sheriff’s Department refused to allow delivery of unsolicited copies of CJA under any circumstances. The Sacramento County Sheriff’s Department, on the other hand, initially agreed to deliver individually addressed copies of CJA but changed its policy after five months.
In February 2008, Hrdlicka and CJA filed two § 1983 suits for injunctive relief, one against Butte County Sheriff Perry Reniff and the other against Sacramento County Sheriff John McGinness, alleging that the refusal to distribute unsolicited copies of CJA to prisoners at their jails violated the First Amendment. Applying Turner, the district court in each case granted summary judgment in favor of the sheriff.
In a consolidated appeal, the Ninth Circuit majority noted that in four previous cases (two involving Prison Legal News), it had held unconstitutional prison policies that placed restrictions on the distribution of gift and solicited publications. The majority rejected the dissent’s position that the fact that CJA was unsolicited rendered the Turner test inapplicable. On the merits, the appellate court found the sheriffs’ expressed concerns about security and the strain on staff resources unpersuasive, and suggested that the ban on delivery of unsolicited copies of CJA “may be an exaggerated response.”
Accordingly, the cases were remanded to their respective district courts for further proceedings. See: Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011).
On September 1, 2011, the Ninth Circuit denied a motion for rehearing en banc, with two Circuit judges entering concurring opinions reiterating that jail prisoners have a right to receive unsolicited publications. “Because inmates are typically in county jail for relatively short periods, and because the value of CJA to inmates is greatest when they first arrive in the jail, it is unrealistic to insist, as a condition for applying the Turner test, that inmates have already subscribed to CJA,” the concurring judges noted. Eight judges wrote a lengthy dissent in the decision in which en banc review was denied. See: Hrdlicka v. Reniff, 656 F.3d 942 (9th Cir. 2011), petition for cert filed.
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Related legal cases
Hrdlicka v. Reniff
|Cite||656 F.3d 942 (9th Cir. 2011)|
|Level||Court of Appeals|
Hrdlicka v. Reniff
|Cite||631 F.3d 1044 (9th Cir. 2011)|
|Level||Court of Appeals|