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Summary Judgment Affirmed Against Publication in Civil Commitment Facility

by David M. Reutter

n August 21, 2019, the Eleventh Circuit Court of Appeals upheld a grant of summary judgment to officials who had banned a civil commitment detainee’s newsletter and placed page limits on the copying of a successor publication.

James Pesci is incarcerated at Florida’s Civil Commitment Center (FCCC), a for-profit facility initially run by the GEO Group that houses involuntarily committed sex offenders. For many years he published a monthly newsletter titled Duck Soup, which he envisioned as “the uncensored pulse of the compound.” It was dedicated to exposing “corruption at FCCC.”

His publication “frequently excoriated FCCC’s staff, sex offender treatment program, and conditions of confinement.” He called GEO a “criminal organization that has a chronic history of cover-ups, medical neglect, and psychological abuse,” and in one issue referred to FCCC residents as “coward[s]” for failing to hold “collective protests” and “demonstrations.”

According to FCCC director Timothy Budz, Duck Soup “became increasingly inflammatory” after a 2009 policy was implemented that required residents to supply their own paper to print copies of the newsletter. Afraid the publication would cause violence at the facility, Budz banned distribution or possession of Duck Soup in November 2010.

A change of guard came a few years later, and Budz was replaced by Dr. Donald Sawyer while GEO Group was replaced by Correct Care Solutions (now known as Wellpath). After Dr. Sawyer took over, Pesci started a new newsletter called The Instigator. Sawyer admitted that the replacement publication was “less inflammatory,” and Pesci was allowed to continue its distribution. Yet FCCC policy limits downloading the newsletter pursuant to a policy that restricts residents to printing 20 pages every other day using FCCC-supplied paper.

Pesci challenged the page-printing limitation in federal court, and subsequently amended his complaint to challenge the ban on Duck Soup. The Eleventh Circuit initially overturned a summary judgment order in favor of the defendants in 2013. [See: PLN, Sept. 2014, p.36].

Following remand, the district court again granted the defendants’ motion for summary judgment and Pesci appealed. The Eleventh Circuit found that he had failed to meet his “burden of showing that the ban on Duck Soup was not reasonably related to the FCCC’s interest in safety and security.”

According to the evidence in the case, “if left unchecked, Duck Soup would continue to publish content that Pesci’s own expert agreed could foment ‘hostility and tension’ in a facility full of violent sex offenders – including some with ‘psychopathic traits’ and ‘impulse disorders.’”

The Court of Appeals noted that “Pesci had a track record of publishing incendiary stories about FCCC staff members – accusing them by name of racism, voyeurism, medical negligence, physical abuse, and other bad acts – and he made clear in his own words that he had no intention of stopping.”

Officials did not have to “wait for a riot to break out before they can take steps to quell it,” the appellate court wrote. As such, the ban on Duck Soup was not a violation of Pesci’s First Amendment rights.

Likewise, the Eleventh Circuit found no constitutional violation in FCCC’s page-limit policy, which had a stated purpose of conserving paper and ink, and minimizing wear and tear on the library printers. It therefore was “reasonably related to the legitimate goal of conserving facility resources.” The district court’s order was affirmed. See: Pesci v. Budz, 935 F.3d 1159 (11th Cir. 2019), rehearing and rehearing en banc denied

Related legal case

Pesci v. Budz