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California: Jail’s Unsolicited Publication Distribution Ban Upheld

A California federal district court held in May 2015 that jail officials did not violate the First Amendment by refusing to distribute unsolicited publications to prisoners.

Crime, Justice & America, Inc. (CJA), founded by former bail bondsman Ray Hrdlicka, publishes a weekly 36- to 40-page magazine of the same name that targets newly-arrested jail detainees awaiting trial. Most of the publication’s articles provide information about the criminal justice process and common legal issues in criminal cases; many articles are written by attorneys and other law enforcement and criminal justice experts, and CJA includes advertisements from lawyers and bail bond companies.

The magazine is free to prisoners. Most jails allow general distribution of CJA’s publication, making stacks of the magazine available in jail common areas.

CJA initially attempted to distribute its magazine through individually-addressed subscriptions, but ended that practice because it was not cost effective or efficient, as prisoners were frequently moved from one facility to another.

California’s Butte County Jail (BCJ), with a population of nearly 600 prisoners, has a mail policy that prohibits unsolicited commercial materials.

In August 2004, CJA asked BCJ officials to distribute its magazine to prisoners. BCJ refused, concluding that doing so would violate the jail’s mail policy. County officials eventually offered to provide access to two copies of the magazine in the facility’s law library, though it takes one to three days for prisoners to gain library access. Only two prisoners at a time are permitted in the law library, which allows an average of 25 prisoners to access the library per day.

The jail also offered to make CJA’s publication available on jail kiosks. BCJ has thirty-one kiosks in the jail’s cells and common areas; two portable kiosks are also available. Kiosks are available to prisoners from 9:00 a.m. to 11 p.m. The kiosk’s touchscreen monitors allow for .pdf-formatted documents to be accessed and viewed.

Believing these forms of distribution were inadequate, CJA filed suit in federal court, alleging that BCJ’s refusal to more widely distribute its magazine to prisoners violated the First Amendment. The case was initially dismissed but reinstated by the Ninth Circuit on appeal. [See: PLN, Feb. 2012, p.44]. On remand, and following a four-day bench trial, the district court found that the reasonable relationship factors set forth in Turner v. Safley, 482 U.S. 2254 (1987) weighed in favor of the jail defendants.

The court first found that BCJ’s “[mail] policy is rationally related to the jail’s security and staffing, which are legitimate penological objectives.”

The district court agreed “that standing alone, the law library does not present an adequate means for Plaintiff to communicate its existence to inmates.” Yet “because an alternative means now exists for electronic distribution of [CJA],” the court found “that this factor weighs in favor of Defendant for purposes of injunctive relief.”

Turning to the impact of accommodating CJA’s rights, the court observed that “if distributed, Plaintiff’s publication would cause approximately an additional 28,000 pages of paper to be distributed throughout the jail,” which also weighed in favor of BCJ.

Ultimately, the district court concluded that “Plaintiff has not shown that Defendant violated its First Amendment rights by declining to distribute its unsolicited publication prior to the availability of the kiosks.” Therefore, CJA was not entitled to declaratory or injunctive relief. CJA has since appealed the court’s judgment and the case remains pending. See: Crime, Justice & America, Inc. v. Honea, U.S.D.C. (E.D. Cal.), Case No. 2:08-cv-00343-TLN-EFB.

Additional source: www.crimejusticeand­

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Related legal case

Crime, Justice & America, Inc. v. Honea