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Fifth Circuit Upholds Dismissal of PLN's Censorship Suit Against TDCJ

by Matt Clarke

In a rare litigation loss for Prison Legal News, the Fifth Circuit Court of Appeals upheld the dismissal of a lawsuit challenging the Texas Department of Criminal Justice's (TDCJ) censorship of books distributed by PLN.

PLN filed a 42 U.S.C. § 1983 civil rights action in 2009 after the TDCJ prohibited prisoners from receiving certain books mailed by PLN. The banned books included Prison Masculinities, The Perpetual Prison Machine, Lockdown America, Soledad Brother and Women Behind Bars. [See: PLN, May 2010, p.8; Jan. 2010, p.38].

The TDCJ maintains a database of books which already have been mailed to Texas state prisoners; the database indicates whether the book was allowed or denied and, if denied, whether the denial was appealed. If a book is being denied for the first time or has previously been denied and the denial was not appealed, both the sender and intended recipient are notified and given an opportunity to appeal. If the denial was previously appealed, the sender is not notified and the recipient cannot appeal. The TDCJ's book database includes over 92,000 titles, of which more than 11,850 are banned.

When a book that is not in the database arrives at a TDCJ facility, one of the prison mail system's 500 employees is assigned to read the book to check for compliance with the TDCJ's rules and policies. If the book is found to be noncompliant – for example, it "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots or gang activity," or a "specific determination has been made the publication is detrimental to offenders' rehabilitation because it would encourage deviant criminal sexual behavior" – then the book is denied and both the sender and intended recipient are notified and informed they can appeal the denial. Mail room staff are "encouraged to 'err on the side of caution' and deny books they believe might be problematic."

However, the appeal of a book denial is merely a review by another TDCJ employee who is a member of the Director's Review Committee (DRC), to determine whether the denial conforms with TDCJ mail policies. The DRC member's decision is final.

The main issues in PLN's suit were whether a sender who mails an unsolicited book to a prisoner has a constitutional right to challenge the book's denial, and whether a sender who mails a prisoner a book that previously has been denied and unsuccessfully appealed has a right to individual notice of the denial and due process. The district court answered the former question in the negative in January 2011 when ruling on the defendants' motion for summary judgment, finding that the latter was not clearly established and the defendants were therefore entitled to qualified immunity. PLN appealed. [See: PLN, Aug. 2011, p.40].

The Court of Appeals first held that PLN has a First Amendment right to send books to prisoners who do not request them. The appellate court firmly rejected the defendants' assertion that publishers such as PLN have no right to send unsolicited mail to prisoners.

"PLN's interest in distributing books to TDCJ's inmates – which is precisely the type of interest at the core of First Amendment protections – is more than sufficient to support its standing to sue," the Court stated.

The Fifth Circuit also held that the seminal case of Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) is no longer controlling law for incoming mail sent to prisoners. Instead, such cases are controlled by the standard established in Turner v. Safley, which is more deferential to prison administrators. Therefore, the TDCJ's censorship policy would be upheld if it has a rational relationship to legitimate penological objectives.

The defendants claimed they had banned the books sent by PLN because two contained graphic depictions of prison rape, two included depictions of racial slurs or racist incidents in prisons and one (Soledad Brother) was allegedly used as a recruiting tool for a prison gang and "advocates the overthrow of prisons by riot and revolt." The last book, Women Behind Bars, by former PLN board member Silja J.A. Talvi, was no longer banned by the TDCJ at the time of the appellate court's ruling.

The Fifth Circuit found the reasons cited by the TDCJ were reasonably related to legitimate penological goals, whether or not the objectionable language in the books would actually result in problems within the prison system. The Court of Appeals also held that TDCJ prisoners had an alternative means of exercising their First Amendment rights because they could receive other books, some of which are critical of prisons; that the censorship policy was reasonably connected to prison security; that there were no easy alternatives to censoring the books that TDCJ officials found objectionable; and that inconsistencies in how the TDCJ applied its book censorship policy did not invalidate the policy.

PLN had argued, to no avail, that the TDCJ allows prisoners to receive other books that also contain objectionable content. For example, "PLN specifically contends that the rape scene in Stephen King's novella Rita Hayworth and the Shawshank Redemption, which appears in multiple literary compilations that have been approved by TDCJ, is just as graphic as the designated passages of Prison Masculinities and The Perpetual Prison Machine."

The Court of Appeals deferred to prison officials to make such distinctions, concluding, "PLN has, at most, demonstrated that reasonable minds might differ on whether to permit certain books into a general prison population, which is very different from demonstrating that TDCJ's practices and exclusion decisions bear no reasonable relation to valid penological objectives."

"TDCJ's book censorship is, frankly, bizarre," said PLN attorney Scott Medlock. "Certainly there are some books prisons could legitimately censor. TDCJ, however, allows prisoners to read some of those titles, while banning numerous important works of literature, history and politics."

Ironically, the TDCJ allows prisoners to receive books such as Hitler's Mein Kampf and Guerilla Warfare by Che Guevara, while at least one work concerning Shakespearean sonnets is banned.

Significantly, the Fifth Circuit held PLN has no right to receive notice that a book was denied or to appeal the denial if the book previously had been denied and that denial was appealed by another party. However, the Court of Appeals did note that, "[a]t least arguably, TDCJ's DRC-level procedures fall short of the traditional requirements of due process because they do not give the appellant, whether prisoner or the outsider, the right to participate in DRC's consideration of the appeal, even informally or through written submissions." But the adequacy of the DRC's appeal process had not been raised in the suit, so it did not affect the outcome of the case – which was that the defendants were entitled to qualified immunity.

Accordingly, the district court's order of dismissal was affirmed. PLN was represented by attorneys Scott Medlock, James Harrington and Lauren Izzo with the Texas Civil Rights Project, and Michigan attorney Dan Manville. See: Prison Legal News v. Livingston, 683 F.3d 201 (5th Cir. 2012).

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Related legal case

Prison Legal News v. Livingston