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Oregon DOC Envelope Art Ban Violates First Amendment

On November 14, 2013, a federal judge denied summary judgment to Oregon prison officials, finding that their enforcement of a policy banning “envelope art” violated the First Amendment. Following a bench trial in early 2015, the district court held the policy unconstitutional and ordered injunctive relief.

The Oregon Department of Corrections (ODOC) adopted a rule requiring that incoming mail “be addressed to the inmate using only his/her committed name and SID number.” OAR 291-131-0025(1). The sender’s name and return address must be on the front of the envelope. ODOC interpreted this rule as authorizing the rejection of mail that included any other content, including artwork, on the front of the envelope.

After Oregon prisoner Jacob Barrett was transferred to New Mexico, he sent a letter to his cousin at the Oregon State Penitentiary (OSP) in January 2011. The letter was rejected and returned to Barrett, however, because he had drawn a picture on the envelope that depicted three skulls, dice and barbed wire.

Barrett appealed the rejection to OSP Superintendent Jeff Premo, who responded that the letter violated OAR 291-131-0025(1). Barrett sought administrative review, which was denied. He then filed suit in federal court alleging that the mail rejection violated his First Amendment free speech rights, among several other claims.

Applying Turner v. Safely, 482 U.S. 78 (1987), the district court denied the defendants summary judgment on the First Amendment claim.

“The evidence proffered by Defendants fails to show an intuitive, common-sense connection between Defendants’ mail policy and enhancing security and promoting efficiency,” the court wrote. “The evidence presented by Defendants actually undermines their position. Defendants proffer evidence showing that pursuant to OAR 291-131-0025(1 l)(b), ‘hand-made drawings’ may be allowed if they are ‘enclosed in the envelope.’” Additionally, the defendants admitted at oral argument “that incoming postcards are allowed under their mail rules even if they have drawings or pictures on them.”

“Under Defendants’ own evidence, it is therefore possible that a drawing placed on the outside of an envelope could be rejected,” noted the court. “But on the other hand be permissible simply because it is placed within the envelope or on a postcard. Such an outcome demonstrates that Defendants’ mail policy is arbitrary and irrational.”

After finding that the second Turner factor was neutral, the court held the third factor weighed in Barrett’s favor.

“Allowing envelope art is unlikely to have a ‘significant ripple effect’ on inmates and staff,” the district court noted. “It is nonsensical that a drawing on the outside of an envelope may be rejected while at the same time be permitted if placed within the envelope or on a postcard.”

Turning to the fourth Turner factor, the court found “the lack of any language in OAR 291-131-0025 explicitly precluding envelopes with art on them belies Defendants’ position that Plaintiff’s January 2011 letter violated an explicit rule.”

Additionally, “the existence of obvious, easy alternatives of allowing drawings to be placed within envelopes or on alternative mediums such as postcards supports the conclusion that Defendants’ mail policy is unreasonable.”

The court granted qualified immunity to the defendants on Barrett’s damage claims, but noted that qualified immunity does not extend to injunctive relief. Following its summary judgment order, the court granted Barrett’s motion for appointment of counsel. A bench trial was held in February 2015 and findings of fact were entered in March.

“Defendants violated Plaintiff’s First Amendment rights,” the court concluded, holding that “the incoming mail policy blocks a narrowly defined form of expression – artwork on the front of envelopes – at too great an expense to the First Amendment rights of inmates and their correspondents.”

The district court entered judgment in the case on May 14, 2015, ordering permanent injunctive relief that enjoins the defendants “from rejecting, refusing to deliver or process, or otherwise prohibiting incoming mail to inmates due to artwork on the front of the envelope, unless the art is found to violate other applicable” ODOC rules. Further, the defendants were ordered to provide notice to prisoners in state facilities, “informing them that they are permitted to receive envelopes with artwork on them as long as the artwork complies with other applicable ODOC rules, such as those against violence.” The court also awarded attorney’s fees and costs, which remain pending.

Barrett was represented by attorneys Blerina Kotori and William F. Martson, Jr. with the Portland, Oregon law firm of Tonkon Torp, LLP. See: Barrett v. Peters, U.S.D.C. (D. Ore.), Case No. 6:11-cv-06358-HZ. The ODOC also has a rule that prohibits drawings on the outside of prisoners’ outgoing mail, though that rule was not addressed in this case.

Related legal case

Barrett v. Peters


 

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