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PLN’s Florida Censorship Suit Passes Summary Judgment Stage

Florida Northern District federal court denied the cross-motions for summary judgment in PLN’s lawsuit challenging the Florida Department of Corrections (FDOC) impoundment and rejection of PLN based upon ad content.

The current suit is not the first round of litigation on the issue of FDOC censoring PLN. FDOC began censoring PLN in 2003 based upon ad content, and midstream into the litigation, FDOC catapulted by amending its rules.

Based upon FDOC “promise” to “no longer impound Prison Legal News due to ads for both three-way calling and pen-pal services,” the district court overseeing the litigation found PLN’s claim was moot. The Eleventh Circuit in 2006 affirmed, stating it had “no expectation that FDOC will resume the practice of impounding the publication based on incidental advertisements.” See PLN: Prison Legal News v Mayo Fl Complaint Inmate Mail Censorship 2011.

Less than three years later, a FDOC rule change provided for rejection of a publication if advertising for three-way calling services, pen-pal services, the purchase of product or services with postage stamps, or conducting a business or profession while incarcerated are” prominent or prevalent throughout the publication.”

Under the revised rule, FDOC has impounded every issue of PLN “on the basis that the magazine’s number of offending ads, as well as their prominence, had increased since the first suit.” PLN challenged the rule as a First Amendment violation in the lawsuit it filed on November 17, 2011. PLN also claimed a Due Process violation for failure to provide notice and opportunity to challenge the censorship.

As to the summary judgment motion filed by the parties, the court found PLN had waived a void for vagueness claim because it had previously denied an “untimely motion to amend” the complaint. The court then turned to PLN’s judicial estoppel argument.

That doctrine, PLN asserted, is applicable due to FDOC’s previous promise to moot its prior lawsuit claim. “While there is some merit to PLN’s claim, this court cannot grant summary judgment to PLN due to disputed issues of fact on several judicial estoppel factors,” the court wrote.

The court determined it needs proof that FDOC’s position is materially inconsistent, and the record, at this point, is unclear as to exactly what FDOC promised. Also, it is disputed whether FDOC’s security concerns have resurfaced due to change in prisoner telephone technologies.

 The court then examined the change in facts exception to the judicial estoppel doctrine. FDOC contends that PLN has increased the number of offending ads since 2005. PLN, however, conceded that “the [total] number of ads per issue increased,” but it urged “the proper measure of change is the percentage of total magazine space occupying offending ads.”  A dispute exists of whether the proper standard is raw numbers of ads or the percentage of ad space, which has not changed since 2002.

Additionally, it was disputed as to whether FDOC’s telephone vendor can still effectively block unauthorized calls lodged through services offered in PLN ads. The court further found disputed facts on each of the four Turner v. Safely, 482 U.S. 78 (1987) test.  Finally, it found disputes on PLN’s Due Process notice claim. As such, the court denied the parties’ cross-motions for summary judgment. See: Prison Legal News v. Crews, USDC, N.D. Florida, Case No. 4:12CV 239 – MW/CAS.

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Related legal case

Prison Legal News v. Crews